UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 6-K
REPORT OF
FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR
15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of April 2020
Commission file number 001-39250
BROOKFIELD INFRASTRUCTURE CORPORATION
(Exact name of Registrant as specified in its charter)
250 Vesey
Street, 15th Floor
New York, New York 10281
(Address of principal executive office)
Indicate by check mark whether
the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form
40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
The following documents, which is attached as exhibits hereto, are incorporated by reference herein:
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Exhibit
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Title
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3.1
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Notice of Articles and Articles of Brookfield Infrastructure Corporation
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10.1
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Rights Agreement, dated as of March 31, 2020, by and between Brookfield Asset Management Inc. and Wilmington Trust, National Association
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10.2
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Registration Rights Agreement, dated as of March 31, 2020, between Brookfield Infrastructure Corporation, Brookfield Infrastructure Partners L.P. and Brookfield Asset Management Inc.
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10.3
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Guarantee, dated as of March 30, 2020, by BIPC Holdings Inc. in favor of Computershare Trust Company of Canada
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10.4
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Guarantee indenture, dated as of March 30, 2020, among BIPC Holdings Inc., BIP Investment Corporation and Computershare Trust Company of Canada
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10.5
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Guarantee indenture, dated as of March 30, 2020, among BIPC Holdings Inc., Brookfield Infrastructure Partners L.P. and Computershare Trust Company of Canada
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10.6
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Credit Agreement, effective as of March 31, 2020, between BUUK Bermuda Holdco Limited, as borrower, and BIP Bermuda Holdings I Limited, as lender
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10.7
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Credit Agreement, effective as of March 31, 2020, between BUUK Bermuda Holdco Limited, as lender, and BIP Bermuda Holdings I Limited, as borrower
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10.8
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Promissory Note, dated as of March 30, 2020, by BUUK Bermuda Holdco Limited
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10.9
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Promissory Note, dated as of March 30, 2020, by Brookfield Infrastructure Corporation
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10.10
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Equity Commitment Agreement, dated as of March 31, 2020, between Brookfield Infrastructure Corporation and Brookfield Infrastructure Holdings (Canada) Inc.
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10.11
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Voting Agreement, effective as of March 30, 2020, between Brookfield Infrastructure Corporation, BIF III Noronha AIV LLC, and BIP Noronha AIV LLC
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10.12
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First Amendment to the Master Services Agreement, dated as of March 31, 2020, by and among Brookfield Asset Management Inc., the Service Recipients and the Service Providers
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10.13
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Code of Business Conduct and Ethics of Brookfield Infrastructure Corporation
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
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BROOKFIELD INFRASTRUCTURE CORPORATION
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Date: April 1, 2020
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By:
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/s/ Michael Ryan
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Name: Michael Ryan
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Title: Secretary
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BUSINESS CORPORATIONS ACT
ARTICLES
of
BROOKFIELD INFRASTRUCTURE CORPORATION
TABLE OF CONTENTS
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PART 1 INTERPRETATION
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1
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PART 2 SHARES AND SHARE CERTIFICATES
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16
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PART 3 ISSUE OF SHARES
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18
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PART 4 SHARE REGISTERS
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19
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PART 5 SHARE TRANSFERS
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19
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PART 6 TRANSMISSION OF SHARES
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20
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PART 7 PURCHASE, REDEEM OR OTHERWISE ACQUIRE SHARES
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21
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PART 8 BORROWING POWERS
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22
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PART 9 ALTERATIONS
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22
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PART 10 MEETINGS OF SHAREHOLDERS
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23
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PART 11 PROCEEDINGS AT MEETINGS OF SHAREHOLDERS
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26
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PART 12 VOTES OF SHAREHOLDERS
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30
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PART 13 DIRECTORS
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35
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PART 14 ELECTION AND REMOVAL OF DIRECTORS
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36
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PART 15 POWERS AND DUTIES OF DIRECTORS
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43
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PART 16 INTERESTS OF DIRECTORS AND OFFICERS
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44
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PART 17 PROCEEDINGS OF DIRECTORS
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45
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PART 18 EXECUTIVE AND OTHER COMMITTEES
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48
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PART 19 OFFICERS
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50
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PART 20 INDEMNIFICATION
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50
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PART 21 DIVIDENDS
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52
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PART 22 ACCOUNTING RECORDS AND AUDITOR
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54
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PART 23 NOTICES
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54
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PART 24 PROHIBITIONS
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57
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PART 25 SPECIAL RIGHTS AND RESTRICTIONS CLASS A EXCHANGEABLE SUBORDINATE VOTING SHARES
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58
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PART 26 SPECIAL RIGHTS AND RESTRICTIONS CLASS B MULTIPLE VOTING SHARES
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67
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PART 27 SPECIAL RIGHTS AND RESTRICTIONS CLASS C NON-VOTING SHARES
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70
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PART 28 SPECIAL RIGHTS AND RESTRICTIONS CLASS A SENIOR PREFERRED SHARES
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73
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PART 29 SPECIAL RIGHTS AND RESTRICTIONS CLASS B JUNIOR PREFERRED SHARES
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74
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BUSINESS CORPORATIONS ACT
ARTICLES
of
BROOKFIELD INFRASTRUCTURE CORPORATION
(the "Company")
PART
1
INTERPRETATION
Definitions
1.1 In these Articles, unless the context otherwise
requires:
(a) "Act" means the Business Corporations Act (British Columbia) from time to time in force and all
amendments thereto and includes all regulations and amendments thereto made pursuant to that Act;
(b) "affiliate" means
with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person;
(c) "BAM" means Brookfield Asset Management Inc., a corporation existing under the Laws of the Province of Ontario, and is
deemed to refer to all successors, including, without limitation, by operation of Law;
(d) "BIP" means Brookfield
Infrastructure Partners L.P., a Bermuda exempted limited partnership, and is deemed to refer to all successors, including, without limitation, by operation of Law;
(e) "BIP-Affiliated Class A Shareholder" means BIP or a Person Controlled by BIP to the extent BIP or such other Person holds Class A Shares;
(f) "BIP Distribution Declaration Date" means the date on which the BIP GP declares any distribution on the BIP Units;
(g) "BIP Distributed Right" has the meaning as provided in clause (ii) of the definition of "Conversion Factor" below;
(h) "BIP GP" means the general partner of BIP from time to time;
(i) "BIP Liquidation Event" has the meaning as provided in §25.25;
(j) "BIP Unit" means a limited partnership interest in BIP representing a fractional part of all the limited partnership
interests in BIP, other than a preferred limited partnership interest, and which limited partnership interest is designated by BIP as an "Equity Unit" (as defined in the Amended and Restated Limited Partnership Agreement of BIP dated as of February
16, 2018), and includes any limited partnership interest or other equity interest of BIP into which such BIP Unit is converted or for which such BIP Unit is exchanged;
(k) "BIP Unit Value" means, with respect to a BIP Unit on a particular date, the market price of a BIP Unit on such date or, if such date is not a Trading Day, the most recent Trading
Day. The market price for each such Trading Day shall be: (i) if the BIP Units are listed on a U.S. National Securities Exchange, the closing price per BIP Unit (or, if no closing price is reported, the average of the last quoted bid and ask prices
or, if more than one in either case, the average of the average bid and average ask prices) on such day for such U.S. National Securities Exchange; (ii) if the BIP Units are not listed on a U.S. National Securities Exchange but are listed on the
TSX, the U.S. dollar equivalent (calculated using the rate published by the Bank of Canada as of 4:30 p.m., Eastern Time, on such date) of the closing price per BIP Unit (or, if no closing price is reported, the average of the last quoted bid and
ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for the TSX; (iii) if the BIP Units are not listed or admitted to trading on any U.S. National Securities Exchange or the TSX, the
last quoted bid price on such day in the over-the-counter market on such day as reported by OTC Markets Group Inc. or a similar organization; (iv) if the BIP Units are not listed or admitted to trading on any U.S. National Securities Exchange or the
TSX and the BIP Units are not quoted in the over-the-counter market, the average of the mid-point of the last quoted bid and ask prices on such day from each of at least three nationally recognized independent investment banking firms selected by
the Company for such purpose or (v) if none of the conditions set forth in clauses (i), (ii), (iii) or (iv) is met, then the amount that a holder of one BIP Unit would receive if each of the assets of BIP were sold for its fair market value on such
date, BIP were to pay all of its outstanding liabilities and the remaining proceeds were to be distributed to its partners in accordance with the terms of its partnership agreement;
(l) "BIP Units Amount" means, with respect to each Tendered Share, such number of BIP Units equal to the Conversion Factor in effect on the Valuation Date with respect to such Tendered
Shares;
(m) "board of directors", "directors" and "board" mean the directors or sole director of the Company
for the time being;
(n) "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in
New York, New York, United States of America or Toronto, Ontario, Canada are authorized or required by Law to close;
(o) "Cash
Amount" means (a) with respect to each Tendered Class A Share, an amount in cash equal to the product of (i) the applicable BIP Units Amount for such Tendered Class A Share multiplied by (ii) the BIP Unit Value as of the applicable Valuation
Date, and (b) with respect to each Tendered Class B Share and Tendered Class C Share, an amount in cash equal to the BIP Unit Value for such Tendered Class B Share or Tendered Class C Share, as applicable;
(p) "Class A Distributed Right" has the meaning as provided in clause (vi) of the definition of "Conversion Factor" below;
(q) "Class A Dividend" has the meaning as provided in §25.2;
(r) "Class A Senior Preferred Share" means a class A senior preferred share of the Company;
(s) "Class A Share" means a class A exchangeable subordinate voting share of the Company;
(t) "Class A Share Value" means, with respect to a Class A Share on a particular date, the market price of a Class A Share on
such date or, if such date is not a Trading Day, the most recent Trading Day. The market price for each such Trading Day shall be: (i) if the Class A Shares are listed on a U.S. National Securities Exchange, the closing price per Class A Share (or,
if no closing price is reported, the average of the last quoted bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for such U.S. National Securities Exchange; (ii) if the Class
A Shares are not listed on a U.S. National Securities Exchange but are listed on the TSX, the U.S. dollar equivalent (calculated using the rate published by the Bank of Canada as of 4:30 p.m., Eastern Time, on such date) of the closing price per
Class A Share (or, if no closing price is reported, the average of the last quoted bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for the TSX; (iii) if the Class A Shares
are not listed or admitted to trading on any U.S. National Securities Exchange or the TSX, the last quoted bid price on such day in the over-the-counter market on such day as reported by OTC Markets Group Inc. or a similar organization; (iv) if the
Class A Shares are not listed or admitted to trading on any U.S. National Securities Exchange or the TSX and the Class A Shares are not quoted in the over-the-counter market, the average of the mid-point of the last quoted bid and ask prices on such
day from each of at least three nationally recognized independent investment banking firms selected by the Company for such purpose or (v) if none of the conditions set forth in clauses (i), (ii), (iii) or (iv) is met then the amount that a holder
of one Class A Share would receive if each of the assets of the Company were sold for its fair market value on such date, the Company were to pay all of its outstanding liabilities and the remaining proceeds were to be distributed to its
shareholders in accordance with the terms of these Articles;
(u) "Class A Shareholder" means a holder of Class A
Shares;
(v) "Class B Junior Preferred Share" means a class B junior preferred share of the Company;
(w) "Class B Retraction Amount" has the meaning as provided in §26.11;
(x) "Class B Retraction Right" has the meaning as provided in §26.11;
(y) "Class B Share" means a class B multiple voting share of the Company;
(z) "Class B Shareholder" means a holder of Class B Shares;
(aa) "Class C Retraction Amount" has the meaning as provided in §27.8;
(bb) "Class C Retraction Right" has the meaning as provided in §27.8;
(cc) "Class C Share" means a class C non-voting share of the Company;
(dd) "Class C Shareholder" means a holder of Class C Shares;
(ee) "Close of Business" means 5:00 p.m., Eastern Time;
(ff) "Company" means Brookfield Infrastructure Corporation;
(gg) "Control" means the control by one Person of another Person in accordance with the following: a Person ("A") controls another Person ("B") where A has the power to
determine the management and policies of B by contract or status (for example, the status of A being the general partner of B) or by virtue of the beneficial ownership of or control over a majority of the voting interests in B; and, for certainty
and without limitation, if A owns or has control over shares or other securities to which are attached more than 50% of the votes permitted to be cast in the election of directors of to the Governing Body of B or A is the general partner of B, a
limited partnership, then in each case A controls B for this purpose;
(hh) "Conversion Factor" means 1.0; provided that in
the event that:
(i) BIP (a) declares or pays a distribution on its outstanding BIP Units wholly or partly in BIP Units; (b)
splits or subdivides its outstanding BIP Units or (c) effects a reverse unit split or otherwise combines or reclassifies its outstanding BIP Units into a smaller number of BIP Units, the Conversion Factor shall be adjusted to equal the amount
determined by multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date for such event by a fraction, (x) the numerator of which shall be the number of BIP Units issued and outstanding as of the Close
of Business on the Record Date for such distribution or the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable (assuming for such purpose that such distribution, split, subdivision, reverse
split, combination or reclassification has occurred as of such time), and (y) the denominator of which shall be the actual number of BIP Units (determined without the above assumption) issued and outstanding as of the Close of Business on the Record
Date for such distribution or the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable.
Any adjustment under this clause (i) shall become effective immediately after the Open of Business on the Record Date
for such distribution, or immediately after the Open of Business on the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable. If such distribution of the type described in this clause (i) is
declared but not so paid or made and will not be so paid or made, the Conversion Factor shall be immediately readjusted, effective as of the date the BIP GP determines not to pay such distribution, to the Conversion Factor that would be in effect if
such distribution had not been declared.
(ii) BIP distributes any rights, options or warrants to all or substantially all
holders of BIP Units to convert into, exchange for or subscribe for or to purchase or to otherwise acquire BIP Units (or other securities convertible into, exchangeable for or exercisable for BIP Units) (each a "BIP Distributed Right"), then,
as of the Record Date for the distribution of such BIP Distributed Rights or, if later, the time such BIP Distributed Rights become exercisable, the Conversion Factor shall be adjusted to equal the amount determined by multiplying the Conversion
Factor in effect immediately prior to the Open of Business on the Record Date by a fraction (A) the numerator of which shall be the number of BIP Units issued and outstanding as of the Close of Business on the Record Date (or, if later, the date
such BIP Distributed Rights become exercisable) plus the maximum number of BIP Units deliverable or purchasable under such BIP Distributed Rights and (B) the denominator of which shall be (x) the number of BIP Units issued and outstanding as of the
Close of Business on the Record Date plus (y) such number of BIP Units determined by dividing the minimum aggregate cash purchase price under such BIP Distributed Rights of the maximum number of BIP Units purchasable under such BIP Distributed
Rights by the average of the BIP Unit Value for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance (or, if later, the date such BIP Distributed Rights
become exercisable); provided, however, that, if any such BIP Distributed Rights expire or become no longer exercisable, then the Conversion Factor shall be adjusted, effective retroactive to the Record Date of the BIP Distributed Rights, to reflect
a reduced maximum number of BIP Units or any change in the minimum aggregate purchase price for the purposes of the above fraction.
Any adjustment under this clause (ii) will be made
successively whenever such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Record Date for such issuance (or, if later, the date such rights, options or warrants become exercisable). To
the extent that the BIP Units are not delivered and will not be delivered after the exercise of such rights, options or warrants, the Conversion Factor shall be decreased to the Conversion Factor that would then be in effect had the increase with
respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of BIP Units actually delivered. If such rights, options or warrants are not so issued, the Conversion Factor shall be decreased,
effective as of the date the BIP GP determines not to issue such rights, options or warrants, to the Conversion Factor that would then be in effect if such Record Date for such issuance had not occurred.
In
determining the minimum aggregate purchase price under such BIP Distributed Rights, there shall be taken into account any consideration received by BIP for such rights, options or warrants and any amount payable on exercise or conversion thereof,
the value of such consideration, if other than cash, to be determined by the BIP GP.
(iii) (A) BIP distributes to all or
substantially all holders of BIP Units evidences of its indebtedness or assets (including securities, but excluding distributions paid exclusively in cash, distributions referred to in clauses (i) or (ii) above or any Spin-off referred to in clause
(iii)(B) below) or rights, options or warrants to convert into, exchange for or subscribe for or to purchase or to otherwise acquire such securities (but excluding distributions referred to in clause (ii) above), the Conversion Factor shall be
adjusted to equal the amount determined by multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date for such distribution by a fraction (a) the numerator of which shall be the average of the BIP Unit
Value over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately prior to the Ex-Dividend Date for such distribution and (b) the denominator of which shall be the average of the BIP Unit Value over the ten
(10) consecutive Trading Day period ending on, and including, the Trading Day immediately prior to the Ex-Dividend Date for such distribution less the fair market value on the Record Date for such distribution (as determined by the BIP GP) of the
portion of the evidences of indebtedness or assets, rights, options or warrants so distributed applicable to one BIP Unit.
Any adjustment under this clause (iii)(A) will become effective
immediately after the Open of Business on the Record Date for such distribution. If such distribution is not paid or made, the Conversion Factor shall be decreased, effective as of the date the BIP GP determines not to pay or make such distribution,
to be the Conversion Factor that would then be in effect if such distribution had not been declared.
Notwithstanding the foregoing, if the fair market value (as determined by the BIP GP) of
the portion of the evidences of indebtedness or assets, rights, options or warrants distributable to one BIP Unit is equal to or greater than the average BIP Unit Value referenced above in this clause (iii)(A), in lieu of the foregoing adjustment,
each Class A Shareholder shall receive from the Company, in respect of each Class A Share, a distribution of cash payable out of the funds legally available therefor (at the same time as holders of the BIP Units), that in the determination of the
Company, is comparable as a whole in all material respects with the amount of BIP indebtedness or assets or rights, options or warrants to convert into, exchange for or subscribe for or to purchase or to otherwise acquire such securities that such
holder would have received if such holder owned a number of BIP Units equal to the Conversion Factor in effect immediately prior to the Record Date.
(B) Where there has been a Spin-off, the Conversion Factor shall be adjusted to equal the amount determined by
multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date for such Spin-off by a fraction (a) the numerator of which shall be the average of the Last Reported Sale Prices of the share capital or similar
equity interest applicable to one BIP Unit distributed to BIP Unit holders over the Valuation Period plus the average of the BIP Unit Value over the Valuation Period and (b) the denominator of which shall be the average of the BIP Unit Value over
the Valuation Period; provided that, the Company may elect to pay cash in lieu of making an adjustment to the Conversion Factor provided by this clause (iii)(B), in which case the Company shall be required to pay to the Class A Shareholders and the
Class A Shareholders shall be entitled to receive, cash on the third (3rd) Business Day immediately following the last Trading Day of the Valuation Period in an amount in respect of each Class A Share held, calculated by multiplying the BIP Unit
Value on the Record Date of such Spin-off by the amount the Conversion Factor would have increased as a result of such Spin-off if no such cash payment was made.
Any adjustment under this
clause (iii)(B) will be made immediately after the Close of Business on the last Trading Day of the Valuation Period, but will be given effect as of the Open of Business on the Record Date for such Spin-off.
Notwithstanding the foregoing, in respect of any exchange by a Class A Shareholder during the Valuation Period, references contained in the definition of Valuation Period to "ten (10) consecutive
Trading Days" shall be deemed for the purposes of the foregoing for such holder to be replaced with such lesser number of Trading Days as have elapsed between the Record Date of such Spin-off and the Trading Day immediately preceding the Exchange
Date in determining the Conversion Factor. If any such Spin-off does not occur, the Conversion Factor shall be decreased, effective as of the date the BIP GP determines not to proceed with the Spin-off, to be the Conversion Factor that would then be
in effect if such Spin-off had not been pursued.
(iv) BIP or one of its subsidiaries makes a payment in respect of a tender or
exchange offer for the BIP Units (but excluding for all purposes any tender or exchange offer involving an offer to exchange BIP Units for Class A Shares or any other security that is economically equivalent to BIP Units), to the extent that the
cash and value of any other consideration included in the payment per BIP Unit exceeds the average of the BIP Unit Value over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on
which tenders or exchanges may be made pursuant to such tender or exchange offer (the "Expiration Date"), then the Conversion Factor shall be adjusted to equal the amount determined by multiplying the Conversion Factor in effect immediately
prior to the Open of Business on the Trading Day next succeeding the Expiration Date by a fraction (a) the numerator of which shall be (x) the sum of the aggregate value of all cash and any other consideration (as determined by the BIP GP) paid or
payable in respect of BIP Units in such tender or exchange offer plus (y) the average of the BIP Unit Value over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date multiplied
by the number of BIP Units issued and outstanding immediately after the Expiration Date (after giving effect to the purchase of all BIP Units accepted for purchase or exchange in such tender or exchange offer, without duplication), and (b) the
denominator of which shall be the number of BIP Units issued and outstanding immediately prior to the Expiration Date (before giving effect to the purchase of all BIP Units accepted for purchase or exchange in such tender or exchange offer)
multiplied by the average of the BIP Unit Value over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.
For greater
certainty, no adjustment under this clause (iv) will be made for any normal course issuer bid or similar stock buyback. Any adjustment under this clause (iv) will be made immediately after the Close of Business on the tenth (10th) Trading Day
immediately following, and including, the Trading Day next succeeding the Expiration Date and shall be given effect as of the Open of Business on the day next succeeding the Expiration Date.
Notwithstanding the foregoing, in respect of any exchange by a Class A Shareholder during the Valuation Period, references above to "ten (10) consecutive Trading Days" shall be deemed for such
holder to be replaced with such lesser number of Trading Days as have elapsed between the Expiration Date and the Trading Day immediately preceding the Exchange Date in determining the Conversion Factor.
(v) the Company (a) declares or pays a dividend on its outstanding Class A Shares wholly or partly in Class A Shares; (b) splits or
subdivides its outstanding Class A Shares or (c) effects a reverse share split or otherwise combines or reclassifies its outstanding Class A Shares into a smaller number of Class A Shares, the Conversion Factor shall be adjusted to equal the amount
determined by multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date for such event by a fraction, (x) the numerator of which shall be the number of Class A Shares issued and outstanding as of the
Close of Business on the Record Date for such dividend or the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable (determined without the assumption for such purpose that such dividend, split,
subdivision, reverse split, combination or reclassification has occurred as of such time), and (y) the denominator of which shall be the actual number of Class A Shares (assuming the above assumption has occurred) issued and outstanding as of the
Close of Business on the Record Date for such dividend or the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable.
Any
adjustment under this clause (v) shall become effective immediately after the Open of Business on the Record Date for such dividend, or immediately after the Open of Business on the Effective Date for such split, subdivision, reverse split,
combination or reclassification, as applicable. If such dividend of the type described in this clause (v) is declared but not so paid or made and will not be so paid or made, the Conversion Factor shall be immediately readjusted, effective as of the
date the board of directors determines not to pay such dividend, to the Conversion Factor that would be in effect if such dividend had not been declared.
(vi) the Company distributes any rights, options or warrants to all or substantially all holders of Class A Shares to convert into, exchange for or subscribe for or to purchase or to otherwise
acquire Class A Shares (or other securities convertible into, exchangeable for or exercisable for Class A Shares) at a price per share that is less than the average of the Class A Share Value for the ten (10) consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the date of announcement of such issuance (each a "Class A Distributed Right"), then, as of the Record Date for the distribution of such Class A Distributed Rights or, if later, the
time such Class A Distributed Rights become exercisable, the Conversion Factor shall be adjusted to equal the amount determined by multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date by a fraction
(A) the numerator of which shall be (x) the number of Class A Shares issued and outstanding as of the Close of Business on the Record Date (or, if later, the date such Class A Distributed Rights become exercisable) plus (y) such number of Class A
Shares determined by dividing the minimum aggregate cash purchase price under such Class A Distributed Rights of the maximum number of Class A Shares purchasable under such Class A Distributed Rights by the average of the Class A Share Value for the
ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance (or, if later, the date such Class A Distributed Rights become exercisable) and (B) the denominator of
which shall be the number of Class A Shares issued and outstanding as of the Close of Business on the Record Date (or, if later, the date such Class A Distributed Rights become exercisable) plus the maximum number of Class A Shares purchasable under
such Class A Distributed Rights; provided, however, that, if any such Class A Distributed Rights expire or become no longer exercisable, then the Conversion Factor shall be adjusted, effective retroactive to the Record Date of the Class A
Distributed Rights, to reflect a reduced maximum number of Class A Shares or any change in the minimum aggregate purchase price for the purposes of the above fraction.
Any adjustment under
this clause (vi) will be made successively whenever such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Record Date (or, if later, the date such Class A Distributed Rights become
exercisable) for such issuance. To the extent that the Class A Shares are not delivered and will not be delivered after the exercise of such rights, options or warrants, the Conversion Factor shall be increased to the Conversion Factor that would
then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of Class A Shares actually delivered. If such rights, options or warrants are not so issued,
the Conversion Factor shall be increased, effective as of the date the board of directors determines not to issue such rights, options or warrants, to the Conversion Factor that would then be in effect if such Record Date for such issuance had not
occurred.
In determining the minimum aggregate purchase price under such Class A Distributed Rights, there shall be taken into account any consideration received by the Company for such rights, options or
warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the board of directors.
Any adjustment to the
Conversion Factor shall be calculated up to four (4) decimal places. Within ten (10) Business Days of the effectiveness of any adjustment or readjustment of the Conversion Factor, the Company shall make a public announcement of such adjustment or
readjustment.
Notwithstanding the foregoing, the Conversion Factor shall not be adjusted in connection with (a) an event described in clauses (i) through (iv) above (other than clause (iii)(B)
above) if, in connection with such event, the Company makes a distribution of cash, Class A Shares, BIP Units and/or rights, options or warrants to acquire Class A Shares and/or BIP Units with respect to all applicable Class A Shares, splits or
subdivides the Class A Shares, distributes to all or substantially all holders of Class A Shares evidences of its indebtedness or assets or effects a reverse split of, or otherwise combines or makes an offer for, the Class A Shares, as applicable,
that, in the determination of the Company, is comparable as a whole in all material respects with such event, (b) a Spin-off as described in clause (iii)(B) above if the Company makes a distribution of the share capital or similar equity interests
distributed to BIP Unit holders in the Spin-off in an amount and on terms that are comparable in all material respects to such Spin-off, or (c) an event described in clauses (v) through (vi) above if, in connection with such event, BIP makes a
distribution of cash, Class A Shares, BIP Units and/or rights, options or warrants to acquire Class A Shares and/or BIP Units with respect to all BIP Units, splits or subdivides the BIP Units or effects a reverse split of, or otherwise combines or
makes an offer for, the BIP Units, as applicable, that, in the determination of the Company, is comparable as a whole in all material respects with such event;
(ii) "Conversion Notice" has the meaning as provided in §25.31;
(jj) "Effective Date" means, with respect to an event
described in clauses (i) and (v) of the definition of "Conversion Factor" above, the first date on which the BIP Units or Class A Shares, as applicable, trade on the applicable exchange or in the applicable market, in a regular way, reflecting the
relevant unit or share split, subdivision, reserve split, combination or reclassification, as applicable;
(kk) "Exchange
Act" means the U.S. Securities Exchange Act of 1934, as amended;
(ll) "Exchange Consideration" has the meaning as
provided in §25.13;
(mm) "Exchange Date" means the date upon which a Tendering Class A Shareholder's Exchange Right
has been satisfied by the delivery of the Exchange Consideration to such Tendering Class A Shareholder with respect to its Tendered Class A Shares;
(nn) "Exchange-Redemption Call Right" has the meaning as provided in §25.23;
(oo) "Exchange Right" has the meaning as provided in §25.11;
(pp) "Ex-Dividend Date" means, in respect of a dividend or distribution on the applicable securities, (a) the date on which
such securities are traded without an entitlement to such dividend or distribution or (b) where such securities trade on a due bill basis, the date on which such dividend or distribution is paid;
(qq) "Expiration Date" has the meaning as provided in clause (iv) of the definition of "Conversion Factor" above;
(rr) "Governing Body" means (i) with respect to a corporation or limited company, the board of directors of such corporation
or limited company, (ii) with respect to a limited liability company, the manager(s), director(s) or managing partner(s) of such limited liability company, (iii) with respect to a partnership, the board, committee or other body of each general
partner or managing partner of such partnership, respectively, that serves a similar function (or if any such general partner is itself a partnership, the board, committee or other body of such general or managing partner's general or managing
partner that serves a similar function), and (iv) with respect to any other Person, the body of such Person that serves a similar function, and in the case of each of (i) through (iv) includes any committee or other subdivision of such body and any
Person to whom such body has delegated any power or authority, including any officer or managing director;
(ss) "Interpretation
Act" means the Interpretation Act (British Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant to that Act;
(tt) "Last Reported Sale Price" means with respect to a security on a particular date, the market price of such security on such
date or, if such date is not a Trading Day, the most recent Trading Day. The market price for each such Trading Day shall be: (i) if such security is listed on a U.S. National Securities Exchange, the closing price per security (or, if no closing
price is reported, the average of the last quoted bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for such U.S. National Securities Exchange (or, if listed on more than one
U.S. National Securities Exchange, the U.S. National Securities Exchange with the greatest volume of trading by dollar value over the 12-month period preceding the date of the calculation); (ii) if such security is not listed on a U.S. National
Securities Exchange but is listed on the TSX, the U.S. dollar equivalent (calculated using the rate published by the Bank of Canada as of 4:30 p.m., Eastern Time, on such date) of the closing price per security (or, if no closing price is reported,
the average of the last quoted bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for the TSX; (iii) if such security is not listed or admitted to trading on any U.S. National
Securities Exchange or the TSX, the last quoted bid price on such day in the over-the-counter market on such day as reported by OTC Markets Group Inc. or a similar organization; or (iv) if such security is not listed or admitted to trading on any
U.S. National Securities Exchange or the TSX and such security is not quoted in the over-the-counter market, the average of the mid-point of the last quoted bid and ask prices on such day from each of at least three nationally recognized independent
investment banking firms selected by the Company for such purpose;
(uu) "Laws" means all federal, provincial, state, municipal, regional and local laws (including common law), by-laws,
statutes, rules, regulations, principles of law and equity, orders, rulings, certificates, ordinances, judgments, injunctions, determinations, awards, decrees, legally binding codes, policies or other requirements, whether domestic or foreign, and
the terms and conditions of any grant of approval, permission, authority or license of any governmental entity, and the term "applicable" with respect to such Laws and in a context that refers to one or more Persons, means such Laws as are binding
upon or applicable to such Person or its assets;
(vv) "legal personal representative" means the personal or other legal
representative of the shareholder;
(ww) "Liquidation Amount" has the meaning as provided in §25.25;
(xx) "Liquidation Call Consideration" has the meaning as provided in §25.28;
(yy) "Liquidation Call Right" has the meaning as provided in §25.28;
(zz) "Liquidation Date" has the meaning as provided in §25.25;
(aaa) "Liquidation Event" has the meaning as provided in §25.25;
(bbb) "Liquidation Reference Date" has the meaning as provided in §25.25;
(ccc) "Non-Affiliated Holders" means the holders of Class A Shares other than BIP-Affiliated Class A Shareholders;
(ddd) "Notice of Class A Redemption" means a Notice of Redemption substantially in the form set forth on Exhibit B
hereto;
(eee) "Notice of Class B Retraction" means a Notice of Retraction substantially in the form set forth on Exhibit C hereto;
(fff) "Notice of Class C Retraction" means a Notice of Retraction substantially in the form set forth on Exhibit D hereto;
(ggg) "Notice of Exchange" means a Notice of Exchange substantially in the form set forth on Exhibit A hereto (or notice of
the exercise of Exchange Rights in such other form as may be acceptable to the Company);
(hhh) "Open of Business" means
9:00 a.m., Eastern Time;
(iii) "Person" means any natural person, partnership, limited partnership, limited liability
partnership, joint venture, syndicate, sole proprietorship, company or corporation (with or without share capital), limited liability corporation, unlimited liability company, joint stock company, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative, governmental entity or other entity however designated or constituted and pronouns have a similarly extended meaning;
(jjj) "Preferred Shares" means the Class A Senior Preferred Shares and the Class B Junior Preferred Shares;
(kkk) "Record Date" means with respect to any dividend, distribution or other transaction or event in which the holders of BIP Units and/or Class A Shares have the right to receive any
cash, securities, assets or other property or in which BIP Units and/or Class A Shares are exchanged for or converted into any combination of securities, cash, assets or other property, the date fixed for determination of holders of BIP Units and/or
Class A Shares entitled to receive such cash, securities, assets or other property (whether such date is fixed by the board of directors or the BIP GP, as applicable, or a duly authorized committee thereof, or as determined pursuant to any statute,
constating document, contract or otherwise);
(lll) "Redemption Consideration" has the meaning as provided in
§25.21;
(mmm) "registered address" of a shareholder means the shareholder's address as recorded in the central
securities register;
(nnn) "Rights Agent" means Wilmington Trust, National Association or any successor thereto as rights
agent for the Secondary Exchange Amount;
(ooo) "Rights Agreement" means that certain Rights Agreement dated on or
about March 31, 2020 by and between BAM and the Rights Agent as it may be amended or modified from time to time in accordance with the terms thereof;
(ppp) "Secondary Exchange Amount" means, with respect to a Tendered Share, the BIP Units Amount for such Tendered Share or, at the election of BAM, the Cash Amount for such Tendered Share,
in each case, on the terms and subject to the conditions of the Rights Agreement;
(qqq) "Secondary Exchange Date" means, with respect to any Class A Share, the
date that is two (2) Business Days following the Specified Exchange Date or Specified Class A Redemption Date, as applicable, with respect to such Class A Share;
(rrr) "Secondary Exchange Right" has the meaning set forth in §25.16;
(sss) "share" means a share in the share structure of the Company;
(ttt) "special majority" means the number of votes described in §11.2 which is required to pass a special resolution;
(uuu) "Specified Class A Redemption Date" means, with respect to the Notice of Class A Redemption, the sixtieth (60th) day following delivery of such Notice of Class A Redemption to the
Class A Shareholder or such later day specified in such Notice of Class A Redemption;
(vvv) "Specified Class B Retraction
Date" means, with respect to each Notice of Class B Retraction, the thirtieth (30th) day following receipt of such Notice of Class B Retraction by the Company;
(www) "Specified Class C Retraction Date" means, with respect to each Notice of Class C Retraction, the thirtieth (30th) day following receipt of such Notice of Class C Retraction by the
Company;
(xxx) "Specified Exchange Date" means, with respect to each Notice of Exchange for which an Exchange Date has not
occurred prior thereto, the tenth (10th) Business Day following the receipt of such Notice of Exchange by the Transfer Agent;
(yyy) "Spin-off" means a payment by BIP of a distribution of shares of any class or series, or similar equity
interest, of or relating to a subsidiary or business unit of BIP, that are, or, when issued, will be, listed or admitted for trading on a U.S. National Securities Exchange or the TSX;
(zzz) "Tendered Class A Shares" has the meaning as provided in §25.11;
(aaaa) "Tendered Class B Shares" has the meaning as provided in §26.11;
(bbbb) "Tendered Class C Shares" has the meaning as provided in §27.8;
(cccc) "Tendered Shares" means the Tendered Class A Shares, Tendered Class B Shares or Tendered Class C Shares, as
applicable;
(dddd) "Tendering Class A Shareholder" has the meaning as provided in §25.11;
(eeee) "Tendering Class B Shareholder" has the meaning as provided in §26.11;
(ffff) "Tendering Class C Shareholder" has the meaning as provided in §27.8;
(gggg) "Trading Day" means a day on which (a) trading in the applicable securities generally occurs on a U.S. National Securities Exchange or, if the applicable securities are not then
listed on a U.S. National Securities Exchange, on the TSX or such other market on which the applicable securities are then traded and (b) a Last Reported Sale Price for the applicable securities is available on such securities exchange or market. If
the applicable securities are not so listed, or in the case of unlisted securities, so traded, "Trading Day" means a "Business Day";
(hhhh) "Transfer" means any sale, assignment, surrender, gift or transfer of ownership of, the granting or foreclosure of a
pledge, mortgage, charge, security interest, hypothecation or other encumbrance, whether voluntary, involuntary, by operation of law or otherwise, or the entry into of any contract, option or other arrangement or understanding with respect to the
foregoing;
(iiii) "Transfer Agent" means Computershare Investor Services Inc., and includes any person who becomes a
successor or replacement transfer agent is deemed to refer to all successors, including, without limitation, by operation of law of such transfer agent;
(jjjj) "TSX" means Toronto Stock Exchange;
(kkkk) "Unpaid
Dividends" has the meaning as provided in §25.3;
(llll) "U.S. National Securities Exchange" means an exchange
registered with the U.S. Securities and Exchange Commission under Section 6(a) of the Exchange Act on which the applicable securities are listed, or if the applicable securities are not listed on an exchange so registered with the U.S. Securities
and Exchange Commission, any other U.S. exchange, whether or not so registered, on which the applicable securities are listed;
(mmmm) "Valuation Date" means (i) the date of receipt by the Transfer Agent of a Notice of Exchange, or by the Company of a
Notice of Class B Retraction or Notice of Class C Retraction, as applicable, or, if such date is not a Trading Day, the first (1st) Trading Day thereafter; or (ii) the day immediately preceding the date the Company issues a Notice of Class A
Redemption, or, if such day is not a Business Day, the Trading Day immediately preceding such day; and
(nnnn) "Valuation
Period" means, with respect to any Spin-off, the ten (10) consecutive Trading Day period commencing on, and including, the Ex-Dividend Date of the Spin-off.
Act and Interpretation Act Definitions
Applicable
1.2 The definitions in the Act and the definitions and rules of construction in the Interpretation Act, with the necessary changes, so
far as applicable, and except as the context requires otherwise, apply to these Articles as if they were an enactment. If there is a conflict between a definition in the Act and a definition or rule in the Interpretation Act relating to a term used
in these Articles, the definition in the Act will prevail. If there is a conflict or inconsistency between these Articles and the Act, the Act will prevail.
Actions on Non-Business Days
1.3 Whenever any payment to be made or action to be taken hereunder is required to be made or taken on a day other than a Business Day, such payment shall
be made or action taken on the next following Business Day.
Currency
1.4 Except where otherwise expressly
provided herein, all amounts are stated in U.S. currency.
PART 2
SHARES AND SHARE CERTIFICATES
Authorized Share Structure
2.1 The authorized share structure of the Company consists of shares of the class or classes and series, if any, described in the Notice of Articles of the
Company.
Form of Share Certificate
2.2 Each share certificate issued by the Company must comply with, and be
signed as required by, the Act.
Shareholder Entitled to Certificate, Acknowledgment or Written Notice
2.3 Unless the shares of which the shareholder is the registered owner are uncertificated shares, each shareholder is entitled, without charge, to (a) one
share certificate representing the shares of each class or series of shares registered in the shareholder's name or (b) a non-transferable written acknowledgment of the shareholder's right to obtain such a share certificate, provided that in respect
of a share held jointly by several persons, the Company is not bound to issue more than one share certificate and delivery of a share certificate for a share to one of several joint shareholders or to one of the shareholders' duly authorized agents
will be sufficient delivery to all. If a shareholder is the registered owner of uncertificated shares, the Company must send to a holder of an uncertificated share a written notice containing the information required by the Act within a reasonable
time after the issue or transfer of such share.
Delivery by Mail
2.4 Any share certificate or
non-transferable written acknowledgment of a shareholder's right to obtain a share certificate may be sent to the shareholder by mail at the shareholder's registered address and neither the Company nor any director, officer or agent of the Company
is liable for any loss to the shareholder because the share certificate or acknowledgement is lost in the mail or stolen.
Replacement of Worn Out or Defaced Certificate or Acknowledgement
2.5 If a share certificate or a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate is worn out or defaced, the Company must, on production of the
share certificate or acknowledgment, as the case may be, and on such other terms, if any, as are deemed fit:
(a) cancel the share
certificate or acknowledgment; and
(b) issue a replacement share certificate or acknowledgment.
Replacement of Lost, Stolen or Destroyed Certificate or Acknowledgment
2.6 If a share certificate or a
non-transferable written acknowledgment of a shareholder's right to obtain a share certificate is lost, stolen or destroyed, the Company must issue a replacement share certificate or acknowledgment, as the case may be, to the person entitled to that
share certificate or acknowledgment, if it receives:
(a) proof satisfactory to it of the loss, theft or destruction; and
(b) any indemnity the directors consider adequate.
Splitting Share Certificates
2.7 If a shareholder surrenders a share certificate to the Company with a written request that the Company issue in the shareholder's name two or more
share certificates, each representing a specified number of shares and in the aggregate representing the same number of shares as the share certificate so surrendered, the Company must cancel the surrendered share certificate and issue replacement
share certificates in accordance with that request.
Certificate Fee
2.8 There must be paid to the Company,
in relation to the issue of any share certificate under §2.5, §2.6 or §2.7, the amount, if any, not exceeding the amount prescribed under the Act, determined by the directors.
Recognition of
Trusts
2.9 Except as required by law or statute or these Articles, no person will be recognized by the Company as holding any share upon any trust,
and the Company is not bound by or compelled in any way to recognize (even when having notice thereof) any equitable, contingent, future or partial interest in any share or fraction of a share or (except as required by law or statute or these
Articles or as ordered by a court of competent jurisdiction) any other rights in respect of any share except an absolute right to the entirety thereof in the shareholder.
PART 3
ISSUE OF
SHARES
Directors Authorized
3.1 Subject to the Act and the rights, if any, of the holders of issued
shares of the Company, the Company may allot, issue, sell or otherwise dispose of the unissued shares, and issued shares held by the Company, at the times, to the persons, including directors, in the manner, on the terms and conditions and for the
consideration (including any premium at which shares with par value may be issued) that the directors may determine. The issue price for a share with par value must be equal to or greater than the par value of the share.
Commissions and Discounts
3.2 The Company may at any time pay a reasonable commission or allow a reasonable
discount to any person in consideration of that person's purchase or agreement to purchase shares of the Company from the Company or any other person's procurement or agreement to procure purchasers for shares of the Company.
Brokerage
3.3 The Company may pay such brokerage fee or other consideration as may be lawful for or in
connection with the sale or placement of its securities.
Conditions of Issue
3.4 Except as provided
for by the Act, no share may be issued until it is fully paid. A share is fully paid when:
(a) consideration is provided to the
Company for the issue of the share by one or more of the following:
(i) past services performed for the Company;
(ii) property;
(iii) money; and
(b) the value of the consideration received by the Company equals or exceeds the issue price set for the share under §3.1.
Share Purchase Warrants and Rights
3.5 Subject to the Act and the rights if any, of the holders of issued shares
of the Company, the Company may issue share purchase warrants, options and rights upon such terms and conditions as the directors determine, which share purchase warrants, options and rights may be issued alone or in conjunction with debentures,
debenture stock, bonds, shares or any other securities issued or created by the Company from time to time.
PART 4
SHARE REGISTERS
Central Securities Register
4.1 As required by and subject to the Act, the Company must maintain a central securities register and may appoint an agent to maintain such register. The directors may appoint one or more agents,
including the agent appointed to keep the central securities register, as transfer agent for shares or any class or series of shares and the same or another agent as registrar for shares or such class or series of shares, as the case may be. The
directors may terminate such appointment of any agent at any time and may appoint another agent in its place. If the directors designate a location outside British Columbia as the location at which the company maintains its central securities
register, the central securities register must be available for inspection and copying in accordance with the Act at a location inside British Columbia by means of a computer terminal or other electronic technology.
PART 5
SHARE TRANSFERS
Registering Transfers
5.1 A
transfer of a share must not be registered unless the Company or the transfer agent or registrar for the class or series of shares to be transferred has received:
(a) except as exempted by the Act, a duly signed proper instrument of transfer in respect of the share;
(b) if a share certificate has been issued by the Company in respect of the share to be transferred, that share certificate;
(c) if a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate has been issued by the Company in respect of the share to be transferred, that
acknowledgment; and
(d) such other evidence, if any, as the Company or the transfer agent or registrar for the class or series of
share to be transferred may require to prove the title of the transferor or the transferor's right to transfer the share, the due signing of the instrument of transfer and the right of the transferee to have the transfer registered.
Form of Instrument of
Transfer
5.2 The instrument of transfer in respect of any share of the Company must be either in the form, if any, on the back of the Company's
share certificates of that class or series or in some other form that may be approved by the directors.
Transferor Remains Shareholder
5.3 Except to the extent that the Act otherwise provides, the transferor of a share is deemed to remain the holder of it until the name of the transferee is entered in a securities register of the
Company in respect of the transfer.
Signing of Instrument of Transfer
5.4 If a shareholder, or the
shareholder's duly authorized attorney, signs an instrument of transfer in respect of shares registered in the name of the shareholder, the signed instrument of transfer constitutes a complete and sufficient authority to the Company and its
directors, officers and agents to register the number of shares specified in the instrument of transfer or specified in any other manner, or, if no number is specified, all the shares represented by the share certificates or set out in the written
acknowledgments deposited with the instrument of transfer:
(a) in the name of the person named as transferee in that instrument
of transfer; or
(b) if no person is named as transferee in that instrument of transfer, in the name of the person on whose behalf
the instrument is deposited for the purpose of having the transfer registered.
Enquiry as to Title Not Required
5.5 Neither the Company nor any director, officer or agent of the Company is bound to inquire into the title of the person named in the instrument of
transfer as transferee or, if no person is named as transferee in the instrument of transfer, of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered or is liable for any claim related to
registering the transfer by the shareholder or by any intermediate owner or holder of the shares transferred, of any interest in such shares, of any share certificate representing such shares or of any written acknowledgment of a right to obtain a
share certificate for such shares.
Transfer Fee
5.6 There must be paid to the Company, in relation to the
registration of a transfer, the amount, if any, determined by the directors.
PART 6
TRANSMISSION OF SHARES
Legal Personal Representative Recognized on Death
6.1 In case of the death of a shareholder, the legal personal representative of the shareholder, or in the case of shares registered in the shareholder's
name and the name of another person in joint tenancy, the surviving joint holder, will be the only person recognized by the Company as having any title to the shareholder's interest in the shares. Before recognizing a person as a legal personal
representative of a shareholder, the Company shall receive the documentation required by the Act.
Rights of Legal Personal Representative
6.2 The legal personal representative of a shareholder has the same rights, privileges and obligations that attach to the shares held by the shareholder, including the right to transfer the shares
in accordance with these Articles, provided the documents required by the Act and the directors have been deposited with the Company. This §6.2 does not apply in the case of the death of a shareholder with respect to shares registered in the
name of the shareholder and the name of another person in joint tenancy.
PART 7
PURCHASE, REDEEM OR OTHERWISE ACQUIRE SHARES
Company Authorized to
Purchase, Redeem or Otherwise Acquire Shares
7.1 Subject to the special rights or restrictions attached to the shares of any class or series and
the Act, the Company may, if authorized by the directors, purchase or otherwise acquire any of its shares at the price and upon the terms determined by the directors.
Sale and Voting of Purchased, Redeemed or
Otherwise Acquired Shares
7.2 If the Company retains a share redeemed, purchased or otherwise acquired by it, the Company may sell, gift, cancel or
otherwise dispose of the share, but, while such share is held by the Company, it:
(a) is not entitled to vote the share at a
meeting of its shareholders;
(b) must not pay a dividend in respect of the share; and
(c) must not make any other distribution in respect of the share.
Company Entitled to
Purchase, Redeem or Otherwise Acquire Share Fractions
7.3 The Company may, without prior notice to the holders, purchase, redeem or otherwise
acquire for fair value any and all outstanding share fractions of any class or kind of shares in its authorized share structure as may exist at any time and from time to time. Upon the Company delivering the purchase funds and confirmation of
purchase or redemption of the share fractions to the holders' registered or last known address, or if the Company has a transfer agent then to such agent for the benefit of and forwarding to such holders, the Company shall thereupon amend its
central securities register to reflect the purchase or redemption of such share fractions and if the Company has a transfer agent, shall direct the transfer agent to amend the central securities register accordingly.
PART
8
BORROWING POWERS
8.1 The Company, if authorized by the directors, may:
(a) borrow money in the manner and amount, on the security, from the sources and on the terms and conditions that they consider appropriate;
(b) issue bonds, debentures and other debt obligations either outright or as security for any liability or obligation of the Company
or any other person and at such discounts or premiums and on such other terms as the directors consider appropriate;
(c) guarantee the repayment of money by any other person or the performance of any obligation of any other person; and
(d) mortgage, charge, whether by way of specific or floating charge, grant a security interest in, or give other security on, the
whole or any part of the present and future assets and undertaking of the Company.
PART 9
ALTERATIONS
Alteration of Authorized Share Structure
9.1 Subject to §9.2 and the Act, the Company may by ordinary resolution (or a resolution of the directors in the case of §9.1(c) or
§9.1(f)):
(a) create one or more classes of shares or, if none of the shares of a class of shares are allotted or issued,
eliminate that class of shares;
(b) increase, reduce or eliminate the maximum number of shares that the Company is authorized to
issue out of any class of shares or establish a maximum number of shares that the Company is authorized to issue out of any class of shares for which no maximum is established;
(c)
subdivide or consolidate all or any of its unissued, or fully paid issued, shares;
(d) if the Company is authorized to issue shares of a class of shares with par
value:
(i) decrease the par value of those shares; or
(ii) if none of the shares of that class of shares are allotted or issued, increase the par value of those shares;
(e) change all or any of its unissued, or fully paid issued, shares with par value into shares without par value or any of its unissued shares without par value into shares with par value;
(f) alter the identifying name of any of its shares; or
(g) otherwise alter its shares or authorized share structure when required or permitted to do so by the Act where it does not specify by a special resolution;
and, if applicable, alter its Notice of Articles and Articles accordingly.
Special Rights or Restrictions
9.2 Subject to the Act and in particular those provisions of the Act relating to the rights of holders of outstanding shares to vote if their rights are prejudiced or interfered with, the Company
may by ordinary resolution:
(a) create special rights or restrictions for, and attach those special rights or restrictions
to, the shares of any class of shares, whether or not any or all of those shares have been issued; or
(b) vary or delete any
special rights or restrictions attached to the shares of any class of shares, whether or not any or all of those shares have been issued,
and alter its Notice of Articles and Articles accordingly.
Change of Name
9.3 The Company may by directors resolution authorize an alteration of its Notice of Articles in
order to change its name or adopt or change any translation of that name.
Other Alterations
9.4 If the Act
does not specify the type of resolution and these Articles do not specify another type of resolution, the Company may by ordinary resolution alter these Articles.
PART
10
MEETINGS OF SHAREHOLDERS
Annual General Meetings
10.1 Unless an annual general
meeting is deferred or waived in accordance with the Act, the Company must hold its first annual general meeting within 18 months after the date on which it was incorporated or otherwise recognized, and after that must hold an annual general meeting
at least once in each calendar year and not more than 15 months after the last annual reference date at such time and place as may be determined by the directors.
Resolution Instead of Annual General
Meeting
10.2 If all the shareholders who are entitled to vote at an annual general meeting consent in writing by a unanimous resolution to all of
the business that is required to be transacted at that annual general meeting, the annual general meeting is deemed to have been held on the date of the unanimous resolution. The shareholders must, in any unanimous resolution passed under this
§10.2, select as the Company's annual reference date a date that would be appropriate for the holding of the applicable annual general meeting. A unanimous resolution passed in writing under this §10.2 may be by signed document, fax, email
or any other method of transmitting legibly recorded messages. Any electronic signature on a unanimous resolution, whether digital or encrypted, shall be deemed to have the same force and effect as a manual signature. A unanimous resolution in
writing may be in two or more counterparts which together are deemed to constitute one unanimous resolution in writing.
Calling of Meetings of Shareholders
10.3 The directors may, at any time, call a meeting of shareholders.
Notice for Meetings of Shareholders
10.4 The Company must send notice of the date, time and location of any meeting of shareholders (including, without limitation, any notice specifying the intention to propose a resolution as a
special resolution and any notice to consider approving a continuation into a foreign jurisdiction, an arrangement or the adoption of an amalgamation agreement, and any notice of a general meeting, class meeting or series meeting), in the manner
provided in these Articles, or in such other manner, if any, as may be prescribed by ordinary resolution (whether previous notice of the resolution has been given or not), to each shareholder entitled to attend the meeting, to each director and to
the auditor of the Company, unless these Articles otherwise provide, at least the following number of days before the meeting:
(a) if the Company is a public company, 21 days;
(b) otherwise, 10 days.
Record Date for Notice
10.5 The directors may set a date as
the record date for the purpose of determining shareholders entitled to notice of any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting
requisitioned by shareholders under the Act, by more than four months. The record date must not precede the date on which the meeting is held by fewer than:
(a) if the Company is a public company, 21 days;
(b) otherwise, 10
days.
If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
Record Date for Voting
10.6 The directors may set a date as the record date for the purpose of determining
shareholders entitled to vote at any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Act, by
more than four months. If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
Failure to Give Notice and Waiver of Notice
10.7 The accidental omission to send notice of any meeting of
shareholders to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceedings at that meeting. Any person entitled to notice of a meeting of shareholders may, in writing or otherwise, waive that
entitlement or may agree to reduce the period of that notice. Attendance of a person at a meeting of shareholders is a waiver of entitlement to notice of the meeting unless that person attends the meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not lawfully called.
Notice of Special Business at Meetings of Shareholders
10.8 If a meeting of shareholders is to consider special business within the meaning of §11.1, the notice of meeting must:
(a) state the general nature of the special business; and
(b) if the
special business includes considering, approving, ratifying, adopting or authorizing any document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy of the document will be
available for inspection by shareholders:
(i) at the Company's records office, or at such other reasonably accessible location in
British Columbia as is specified in the notice; and
(ii) during statutory business hours on any one or more specified days before the day set for the holding of the meeting.
Place of Meetings
10.9 In addition to any location in British Columbia, any general meeting may be held in any
location outside British Columbia approved by a resolution of the directors, or if so approved by a resolution of the directors, any general meeting may be held entirely by means of an electronic or other communication facility that permits all
persons participating in the meeting to communicate adequately with each other to the extent permitted by the Act.
PART 11
PROCEEDINGS AT MEETINGS OF SHAREHOLDERS
Special Business
11.1 At a meeting of shareholders, the following business is special business:
(a) at a meeting of shareholders that is not an annual general meeting, all business is special business except business relating to
the conduct of or voting at the meeting;
(b) at an annual general meeting, all business is special business except for the
following:
(i) business relating to the conduct of or voting at the meeting;
(ii) consideration of any financial statements of the Company presented to the meeting;
(iii) consideration of any reports of the directors or auditor;
(iv) the setting or changing of the number of directors;
(v) the election
or appointment of directors;
(vi) the appointment of an auditor;
(vii) the setting of the remuneration of an auditor;
(viii) business
arising out of a report of the directors not requiring the passing of a special resolution;
(ix) any other business which, under
these Articles or the Act, may be transacted at a meeting of shareholders without prior notice of the business being given to the shareholders.
Special Resolutions
11.2 The
number of votes required for the Company to pass a special resolution at a general meeting of shareholders is two-thirds of the votes cast on the resolution.
Ordinary Resolutions
11.3 The number of votes required for the Company to pass an ordinary resolution at a general meeting of shareholders is a majority of the votes cast on
the resolution.
Quorum
11.4 Subject to the special rights or restrictions attached to the shares of any
class or series of shares, and to §11.6, the quorum for the transaction of business at a meeting of shareholders is at least two shareholders who, whether present in person or represented by proxy, in the aggregate, hold at least 25% of the
votes attached to the shares entitled to be voted at the meeting.
11.5 Where a separate vote by a class or series or classes or series is required,
the quorum for that matter is at least two shareholders who, whether present in person or represented by proxy, in the aggregate, hold at least 25% of the votes attached to the shares of such class or series or classes or series entitled to vote on
that matter.
One Shareholder May Constitute Quorum
11.6 If there is only one shareholder entitled to vote
at a meeting of shareholders:
(a) the quorum is one person who is, or who represents by proxy, that shareholder, and
(b) that shareholder, present in person or by proxy, may constitute the meeting.
Persons
Entitled to Attend Meeting
11.7 In addition to those persons who are entitled to vote at a meeting of shareholders, the only other persons
entitled to be present at the meeting are the directors, the president (if any), the secretary (if any), the assistant secretary (if any), any lawyer for the Company, the auditor of the Company, any persons invited to be present at the meeting by
the directors or by the chair of the meeting and any persons entitled or required under the Act or these Articles to be present at the meeting; but if any of those persons does attend the meeting, that person is not to be counted in the quorum and
is not entitled to vote at the meeting unless that person is a shareholder or proxy holder entitled to vote at the meeting.
Requirement of Quorum
11.8 No business, other than the election of a chair of the meeting and the adjournment of the meeting, may be transacted at any meeting of shareholders unless a quorum of shareholders entitled
to vote is present at the commencement of the meeting, but such quorum need not be present throughout the meeting.
Lack of Quorum
11.9 If, within
one-half hour from the time set for the holding of a meeting of shareholders, a quorum is not present:
(a) in the case of a
general meeting requisitioned by shareholders, the meeting is dissolved, and
(b) in the case of any other meeting of
shareholders, the meeting stands adjourned to the same day in the next week at the same time and place specified in the notice calling the meeting unless otherwise determined by an ordinary resolutions of those shareholders present and for which
notification is provided to all shareholders entitled to attend such meeting.
Lack of Quorum at Succeeding Meeting
11.10 If, at the meeting to which the meeting referred to in §11.9(b) was adjourned, a quorum is not present within one-half hour from the time set
for the holding of the meeting, the person or persons present and being, or representing by proxy one or more shareholders, entitled to attend and vote at the meeting shall be deemed to constitute a quorum.
Chair
11.11 The following individual is entitled to preside as chair at a meeting of shareholders:
(a) the chair of the board, if any; or
(b) if the chair of the board is absent or unwilling to act as chair of the meeting, the president, if any.
Selection of Alternate Chair
11.12 If, at any meeting of shareholders, there is no chair of the board or president present within 15 minutes after the time set for holding the meeting,
or if the chair of the board and the president are unwilling to act as chair of the meeting, or if the chair of the board and the president have advised the secretary, if any, or any director present at the meeting, that they will not be present at
the meeting, the directors present may choose either one of their number or the lawyer of the Company to be chair of the meeting. If all of the directors present decline to take the chair or fail to so choose or if no director is present or the
lawyer of the Company declines to take the chair, the shareholders entitled to vote at the meeting who are present in person or by proxy may choose any person present at the meeting to chair the meeting.
Adjournments
11.13 The chair of a meeting of shareholders may, and if so directed by the meeting must, adjourn
the meeting from time to time and from place to place, but no business may be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
Notice of Adjourned
Meeting
11.14 It is not necessary to give any notice of an adjourned meeting of shareholders or of the business to be transacted at an adjourned
meeting of shareholders except that, when a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given as in the case of the original meeting.
Decisions by Show of Hands or
Poll
11.15 Subject to the Act, every motion put to a vote at a meeting of shareholders will be decided on a show of hands unless a poll, before or
on the declaration of the result of the vote by show of hands, is directed by the chair or demanded by any shareholder entitled to vote who is present in person or by proxy.
Declaration of Result
11.16 The chair of a meeting of shareholders must declare to the meeting the decision on every question in accordance with the result of the show of hands
or the poll, as the case may be, and that decision must be entered in the minutes of the meeting. A declaration of the chair that a resolution is carried by the necessary majority or is defeated is, unless a poll is directed by the chair or demanded
under §11.15, conclusive evidence without proof of the number or proportion of the votes recorded in favour of or against the resolution.
Motion Need Not be Seconded
11.17 No motion proposed at a meeting of shareholders need be seconded unless the chair of the meeting rules otherwise, and the chair of any meeting of
shareholders is entitled to propose or second a motion.
Casting Vote
11.18 In case of an equality of votes,
the chair of a meeting of shareholders does not, either on a show of hands or on a poll, have a second or casting vote in addition to the vote or votes to which the chair may be entitled as a shareholder.
Manner of Taking Poll
11.19 Subject to §11.20, if a poll is duly demanded at a meeting of shareholders:
(a) the poll must be taken:
(i) at the meeting, or within seven days after the date of the meeting, as the chair of the meeting directs; and
(ii) in the manner, at the time and at the place that the chair of the meeting directs;
(b) the result of the poll is deemed to be the decision of the meeting at which the poll is demanded; and
(c) the demand for the poll may be withdrawn by the person who demanded it.
Demand for Poll on Adjournment
11.20 A poll demanded at a meeting of shareholders on a question of adjournment must be taken immediately at the meeting.
Chair Must Resolve Dispute
11.21 In the case of any dispute as to the admission or rejection of a vote given on a poll, the chair of the meeting must determine the dispute, and the
determination of the chair made in good faith is final and conclusive.
Casting of Votes
11.22 On a poll, a
shareholder entitled to more than one vote need not cast all the votes in the same way.
No Demand for Poll on Election of Chair
11.23 No poll may be demanded in respect of the vote by which a chair of a meeting of shareholders is elected.
Demand for Poll Not to Prevent Continuance of
Meeting
11.24 The demand for a poll at a meeting of shareholders does not, unless the chair of the meeting so rules, prevent the continuation of a
meeting for the transaction of any business other than the question on which a poll has been demanded.
Retention of Ballots and Proxies
11.25 The Company must, for at least three months after a meeting of shareholders, keep each ballot cast on a poll and each proxy voted at the meeting, and, during that period, make them available
for inspection during normal business hours by any shareholder or proxy holder entitled to vote at the meeting. At the end of such three month period, the Company may destroy such ballots and proxies.
PART
12
VOTES OF SHAREHOLDERS
Number of Votes by Shareholder or by Shares
12.1 Subject to any
special rights or restrictions attached to any shares and to the restrictions imposed on joint shareholders under §12.3:
(a) on a vote by show of hands, every person present who
is a shareholder or proxy holder and entitled to vote on the matter has one vote; and
(b) on a poll, every shareholder entitled
to vote on the matter has one vote in respect of each share entitled to be voted on the matter and held by that shareholder and may exercise that vote either in person or by proxy.
Votes of Persons in
Representative Capacity
12.2 A person who is not a shareholder may vote at a meeting of shareholders, whether on a show of hands or on a poll,
and may appoint a proxy holder to act at the meeting, if, before doing so, the person satisfies the chair of the meeting, or the directors, that the person is a legal personal representative or a trustee in bankruptcy for a shareholder who is
entitled to vote at the meeting.
Votes by Joint Holders
12.3 If there are joint shareholders registered in
respect of any share:
(a) any one of the joint shareholders may vote at any meeting of shareholders, personally or by proxy, in
respect of the share as if that joint shareholder were solely entitled to it; or
(b) if more than one of the joint shareholders
is present at any meeting of shareholders, personally or by proxy, and more than one of them votes in respect of that share, then only the vote of the joint shareholder present whose name stands first on the central securities register in respect of
the share will be counted.
Legal Personal Representatives as Joint Shareholders
12.4 Two or more legal
personal representatives of a shareholder in whose sole name any share is registered are, for the purposes of §12.3, deemed to be joint shareholders registered in respect of that share.
Representative of a
Corporate Shareholder
12.5 If a corporation, that is not a subsidiary of the Company, is a shareholder, that corporation may appoint a person to
act as its representative at any meeting of shareholders of the Company, and:
(a) for that purpose, the instrument appointing a
representative must be received:
(i) at the registered office of the Company or at any other place specified, in the notice calling
the meeting, for the receipt of proxies, at least the number of Business Days specified in the notice for the receipt of proxies, or if no number of days is specified, two Business Days before the day set for the holding of the meeting or any
adjourned meeting; or
(ii) at the meeting or any adjourned meeting, by the chair of the meeting or adjourned meeting or by a person designated by the chair of
the meeting or adjourned meeting;
(b) if a representative is appointed under this §12.5:
(i) the representative is entitled to exercise in respect of and at that meeting the same rights on behalf of the corporation that the
representative represents as that corporation could exercise if it were a shareholder who is an individual, including, without limitation, the right to appoint a proxy holder; and
(ii) the representative, if present at the meeting, is to be counted for the purpose of forming a quorum and is deemed to be a shareholder present in person at the meeting.
Evidence of the appointment of any such representative may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages.
Proxy
Provisions Do Not Apply to All Companies
12.6 If and for so long as the Company is a public company or a pre-existing reporting company which has
the Statutory Reporting Company Provisions as part of its Articles or to which the Statutory Reporting Company Provisions apply, then §12.7 to §12.15 are not mandatory, however the directors of the Company are authorized to apply all or
part of such sections or to adopt alternative procedures for proxy form, deposit and revocation procedures to the extent that the directors deem necessary in order to comply with securities laws applicable to the Company.
Appointment of Proxy Holders
12.7 Every shareholder of the Company, including a corporation that is a
shareholder but not a subsidiary of the Company, entitled to vote at a meeting of shareholders may, by proxy, appoint one or more (but not more than five) proxy holders to attend and act at the meeting in the manner, to the extent and with the
powers conferred by the proxy.
Alternate Proxy Holders
12.8 A shareholder may appoint one or more
alternate proxy holders to act in the place of an absent proxy holder.
Proxy Holder Need Not Be Shareholder
12.9 A proxy holder need not be a shareholder of the Company.
Deposit of Proxy
12.10
A proxy for a meeting of shareholders must:
(a) be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the
receipt of proxies, at least the number of Business Days specified in the notice, or if no number of days is specified, two Business Days before the day set for the holding of the meeting or any adjourned meeting; or
(b) unless the notice provides otherwise, be received, at the meeting or any adjourned meeting, by the chair of the meeting or
adjourned meeting or by a person designated by the chair of the meeting or adjourned meeting.
A proxy may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded
messages, including through Internet or telephone voting or by email, if permitted by the notice calling the meeting or the information circular for the meeting.
Validity of Proxy Vote
12.11 A vote given in accordance with the terms of a proxy is valid notwithstanding the death or incapacity of the shareholder giving the proxy and despite
the revocation of the proxy or the revocation of the authority under which the proxy is given, unless notice in writing of that death, incapacity or revocation is received:
(a) at the registered office of the Company, at any time up to and including the last Business Day before the day set for the holding of the meeting or any adjourned meeting at which the proxy
is to be used; or
(b) at the meeting or any adjourned meeting by the chair of the meeting or adjourned meeting, before any vote
in respect of which the proxy has been given has been taken.
Form of Proxy
12.12 A proxy, whether for a
specified meeting or otherwise, must be either in the following form or in any other form approved by the directors or the chair of the meeting:
[name of company]
(the "Company")
The undersigned, being a shareholder of the Company, hereby appoints [name] or, failing that person, [name], as proxy holder for the undersigned to attend, act and vote for and on behalf of the
undersigned at the meeting of shareholders of the Company to be held on [month, day, year] and at any adjournment of that meeting.
Number of shares in respect of which this proxy is given (if no
number is specified, then this proxy is given in respect of all shares registered in the name of the undersigned):
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Signed [month, day, year]
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[Signature of shareholder]
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[Name of shareholder—printed]
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Revocation of Proxy
12.13 Subject to §12.14, every proxy may be revoked by an instrument in writing that is received:
(a) at the registered office of the Company at any time up to and including the last Business Day before the day set for the holding of the meeting or any adjourned meeting at which the proxy
is to be used; or
(b) at the meeting or any adjourned meeting, by the chair of the meeting or adjourned meeting, before any vote
in respect of which the proxy has been given has been taken.
Revocation of Proxy Must Be Signed
12.14 An
instrument referred to in §12.13 must be signed as follows:
(a) if the shareholder for whom the proxy holder is appointed is
an individual, the instrument must be signed by the shareholder or the shareholder's legal personal representative or trustee in bankruptcy;
(b) if the shareholder for whom the proxy holder is appointed is a corporation, the instrument must be signed by the corporation or
by a representative appointed for the corporation under §12.5.
Production of Evidence of Authority to Vote
12.15 The chair of any meeting of shareholders may, but
need not, inquire into the authority of any person to vote at the meeting and may, but need not, demand from that person production of evidence as to the existence of the authority to vote.
PART
13
DIRECTORS
First Directors; Number of Directors
13.1 The first directors are the
persons designated as directors of the Company in the Notice of Articles that applies to the Company when it is recognized under the Act. The number of directors, excluding additional directors appointed under §14.8, is set at:
(a) subject to §(b) and §(c), the number of directors that is equal to the number of the Company's first directors;
(b) if the Company is a public company, the greater of three and the most recently set of:
(i) the number of directors set by a resolution of the directors (whether or not previous notice of the resolution was given); and
(ii) the number of directors in office pursuant to §14.4;
(c) if the Company is not a public company, the most recently set of:
(i) the number of directors set by a resolution of the directors (whether or not previous notice of the resolution was given); and
(ii) the number of directors in office pursuant to §14.4.
Change in Number of
Directors
13.2 If the number of directors is set under §13.1(b)(i) or §13.1(c)(i), subject to any restrictions in the Act and to
§14.8, the board of directors may appoint the directors needed to fill any vacancies in the board of directors up to that number.
Directors' Acts Valid Despite Vacancy
13.3 An act or proceeding of the directors is not invalid merely because fewer than the number of directors set or otherwise required under these
Articles is in office.
Qualifications of Directors
13.4 A director is not required to hold a share in the share structure of the
Company as qualification for his or her office but must be qualified as required by the Act to become, act or continue to act as a director.
Remuneration of Directors
13.5 The directors are entitled to the remuneration for acting as directors, if any, as the directors may from time to time determine. If the directors
so decide, the remuneration of the directors, if any, will be determined by the shareholders.
Reimbursement of Expenses of Directors
13.6 The Company must reimburse each director for the reasonable expenses that he or she may incur in and about the business of the Company.
Special
Remuneration for Directors
13.7 If any director performs any professional or other services for the Company that in the opinion of the directors
are outside the ordinary duties of a director, he or she may be paid remuneration fixed by the directors, or at the option of the directors, fixed by ordinary resolution, and such remuneration will be in addition to any other remuneration that he or
she may be entitled to receive.
Gratuity, Pension or Allowance on Retirement of Director
13.8 Unless
otherwise determined by ordinary resolution, the directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any director who has held any salaried office or place of profit with the Company or to his or her spouse
or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.
PART 14
ELECTION AND REMOVAL OF DIRECTORS
Election at Annual General Meeting
14.1 At every annual general meeting and in every unanimous resolution
contemplated by §10.2:
(a) the shareholders entitled to vote at the annual general meeting for the election of directors
must elect, or in the unanimous resolution appoint, a board of directors consisting of the number of directors for the time being set under these Articles; and
(b) all the directors cease to hold office immediately before the election or appointment of directors under §(a), but are eligible for re-election or re-appointment.
Consent to be a
Director
14.2 No election, appointment or designation of an individual as a director is valid unless:
(a) that individual consents to be a director in the manner provided for in the Act;
(b) that individual is elected or appointed at a meeting at which the individual is present and the individual does not refuse, at
the meeting, to be a director; or
(c) with respect to first directors, the designation is otherwise valid under the Act.
Failure to Elect or Appoint Directors
14.3 If:
(a) the Company fails to hold an annual general meeting, and all the shareholders who are entitled to vote at an annual general meeting fail to pass the unanimous resolution contemplated by
§10.2, on or before the date by which the annual general meeting is required to be held under the Act; or
(b) the
shareholders fail, at the annual general meeting or in the unanimous resolution contemplated by §10.2, to elect or appoint any directors;
then each director then in office continues to hold office until the
earlier of:
(c) when his or her successor is elected or appointed; and
(d) when he or she otherwise ceases to hold office under the Act or these Articles.
Places of Retiring Directors Not Filled
14.4 If, at any meeting of shareholders at which there should be an election of directors, the places of any of the retiring directors are not filled by
that election, those retiring directors who are not re-elected and who are asked by the newly elected directors to continue in office will, if willing to do so, continue in office to complete the number of directors for the time being set pursuant
to these Articles but their term of office shall expire no later than the date on which new directors are elected at a meeting of shareholders convened for that purpose. If any such election or continuance of directors does not result in the
election or continuance of the number of directors for the time being set pursuant to these Articles, the number of directors of the Company is deemed to be set at the number of directors actually elected or continued in office.
Directors May Fill Casual Vacancies
14.5 Any casual vacancy occurring in the board of directors may be filled
by the directors.
Remaining Directors Power to Act
14.6 The directors may act notwithstanding any vacancy in the board of
directors, but if the Company has fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the directors may only act for the purpose of appointing directors up to that number or of calling a meeting of
shareholders for the purpose of filling any vacancies on the board of directors or, subject to the Act, for any other purpose.
Shareholders May Fill Vacancies
14.7 If the Company has no directors or fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the shareholders may elect or appoint directors to
fill any vacancies on the board of directors.
Additional Directors
14.8 Notwithstanding §13.1,
§13.2, and §14.1, between annual general meetings or by unanimous resolutions contemplated by §10.2, the directors may appoint one or more additional directors but the number of additional directors appointed under this §14.8
must not at any time exceed one-third of the number of the current directors who were elected or appointed as directors other than under this §14.8. Any director so appointed ceases to hold office immediately before the next election or
appointment of directors under §14.1(a), but is eligible for re-election or re-appointment.
Ceasing to be a Director
14.9 A director ceases to be a director when:
(a) the term of office of the
director expires;
(b) the director dies;
(c) the director resigns as a director by notice in writing provided to the Company or a lawyer for the Company; or
(d) the director is removed from office pursuant to §14.10 or §14.11.
Removal of Director by Shareholders
14.10 The Company may remove any director before the expiration of his or her term of office by special resolution. In that event, the shareholders may
elect, or appoint by ordinary resolution, a director to fill the resulting vacancy. If the shareholders do not elect or appoint a director to fill the resulting vacancy contemporaneously with the removal, then the directors may appoint or the
shareholders may elect, or appoint by ordinary resolution, a director to fill that vacancy.
Removal of Director by Directors
14.11 The directors may remove
any director before the expiration of his or her term of office if the director is convicted of an indictable offence, or if the director ceases to be qualified to act as a director of a company and does not promptly resign, and the directors may
appoint a director to fill the resulting vacancy.
Nomination of Directors
14.12
(a) Subject only to the Act, only persons who are nominated in accordance with the following procedures shall be eligible for
election as directors of the Company. Nominations of persons for election to the board may be made at any annual meeting of shareholders, or at any special meeting of shareholders (but only if the election of directors is a matter specified in the
notice of meeting given by or at the direction of the person calling such special meeting):
(i) by or at the direction of the board or an authorized officer of the Company, including
pursuant to a notice of meeting;
(ii) by or at the direction or request of one or more
shareholders pursuant to a proposal made in accordance with the provisions of the Act or a requisition of the shareholders made in accordance with the provisions of the Act; or
(iii) by any person (a "Nominating Shareholder") (A) who, at the close of business on
the date of the giving of the notice provided for below in this §14.12 and on the record date for notice of such meeting, is entered in the securities register as a holder of one or more shares carrying the right to vote at such meeting or who
beneficially owns shares that are entitled to be voted at such meeting and (B) who complies with the notice procedures set forth below in this §14.12.
(b) In addition to any other applicable requirements, for a nomination to be made by a Nominating Shareholder, such person must be given
(i) timely notice thereof in proper written form to an officer of the Company of the Company at
the principal executive offices of the Company in accordance with this §14.12 and
(ii) the representation and agreement with respect to each candidate for nomination as required
by, and within the time period specified in §14.12(c).
(c) To be timely under §14.12(b)(i), a Nominating Shareholder's
notice to an officer of the Company, being either the Chief Executive Officer, the Chief Financial Officer, or the Corporate Secretary (singularly, "an officer of the Company"), must be made:
(i) in the case of an annual meeting of shareholders, not less than 40 days prior to the date of
the annual meeting of shareholders; provided, however, that in the event that the annual meeting of shareholders is called for a date that is less than 50 days after the date (the "Notice Date") on which the first public announcement of the
date of the annual meeting was made, notice by the Nominating Shareholder may be made not later than the tenth (10th) day following the Notice Date; and
(ii) in the case of a special meeting (which is not also an annual meeting) of shareholders called for the purpose of electing directors (whether or not called for other
purposes), not later than the fifteenth (15th) day following the day on which the first public announcement of the date of the special meeting of shareholders was made.
(iii) Notwithstanding the foregoing, the board may, in its sole discretion, waive any
requirement in this §14.12(c).
(d) To be in proper written form, a Nominating Shareholder's notice to an officer of the
Company, under §14.12(b) must set forth:
(i) as to each person whom the Nominating
Shareholder proposes to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares in the
capital of the Company which are controlled or which are owned beneficially or of record by the person as of the record date for the Meeting of Shareholders (if such date shall then have been made publicly available and shall have occurred) and as
of the date of such notice, (D) a statement as to whether such person would be "independent" of the Company (within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 - Audit Committees of the Canadian Securities
Administrators, as such provisions may be amended from time to time) if elected as a director at such meeting and the reasons and basis for such determination and (E) any other information relating to the person that would be required to be
disclosed in a dissident's proxy circular in connection with solicitations of proxies for election of directors pursuant to the Act and Applicable Securities Laws; and
(ii) as to the Nominating Shareholder giving the notice, (A) any information relating to such Nominating Shareholder that would be required to be made in a dissident's proxy
circular in connection with solicitations of proxies for election of directors pursuant to the Act and Applicable Securities Laws, and (B) the class or series and number of shares in the capital of the Company which are controlled or which are owned
beneficially or of record by the Nominating Shareholder as of the record date for the Meeting of Shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice.
(e) No person shall be eligible for election as a director of the Company unless nominated in accordance with the provisions of this §14.12; provided, however, that nothing in this
§14.12 shall be deemed to preclude discussion by a shareholder (as distinct from nominating directors) at a meeting of shareholders of any matter in respect of which it would have been entitled to submit a proposal pursuant to the provisions of
the Act. The chair of the meeting shall have the power and duty to determine whether a nomination was made in accordance with the procedures set forth in the foregoing provisions and, if any proposed nomination is not in compliance with such
foregoing provisions, to declare that such defective nomination shall be disregarded.
(f) For purposes of this §14.12:
(i) "Applicable Securities Laws" means the Securities Act (British Columbia) and
the equivalent legislation in the other provinces and in the territories of Canada, as amended from time to time, the rules, regulations and forms made or promulgated under any such statute and the published national instruments, multilateral
instruments, policies, bulletins and notices of the securities commissions and similar regulatory authorities of each of the applicable provinces and territories of Canada;
(ii) "Associate", when used to indicate a relationship with a specified person, shall mean
(A) any corporation or trust of which such person owns beneficially, directly or indirectly, voting securities carrying more than 10% of the voting rights attached to all voting securities of such corporation or trust for the time being outstanding,
(B) any partner of that person, (C) any trust or estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar capacity, (D) a spouse of such specified person, (E) any person of either
sex with whom such specified person is living in conjugal relationship outside marriage or (F) any relative of such specified person or of a person mentioned in clauses (D) or (E) of this definition if that relative has the same residence as the
specified person;
(iii) "Derivatives Contract" shall mean a contract between two
parties (the "Receiving Party" and the "Counterparty") that is designed to expose the Receiving Party to economic benefits and risks that correspond substantially to the ownership by the Receiving Party of a number of shares in the capital of the
Company or securities convertible into such shares specified or referenced in such contract (the number corresponding to such economic benefits and risks, the "Notional Securities"), regardless of whether obligations under such contract are required
or permitted to be settled through the delivery of cash, shares in the capital of the Company or securities convertible into such shares or other property, without regard to any short position under the same or any other Derivatives Contract. For
the avoidance of doubt, interests in broad-based index options, broad-based index futures and broad-based publicly traded market baskets of stocks approved for trading by the appropriate governmental authority shall not be deemed to be Derivatives
Contracts;
(iv) "Meeting of Shareholders" shall mean such annual shareholders meeting or special
shareholders meeting, whether general or not, at which one or more persons are nominated for election to the board by a Nominating Shareholder;
(v) "owned beneficially" or "owns beneficially" means, in connection with the ownership of shares in the capital of the Company by a person, (A) any such shares
as to which such person or any of such person's affiliates or Associates owns at law or in equity, or has the right to acquire or become the owner at law or in equity, where such right is exercisable immediately or after the passage of time and
whether or not on condition or the happening of any contingency or the making of any payment, upon the exercise of any conversion right, exchange right or purchase right attaching to any securities, or pursuant to any agreement, arrangement, pledge
or understanding whether or not in writing; (B) any such shares as to which such person or any of such person's affiliates or Associates has the right to vote, or the right to direct the voting, where such right is exercisable immediately or after
the passage of time and whether or not on condition or the happening of any contingency or the making of any payment, pursuant to any agreement, arrangement, pledge or understanding whether or not in writing; (C) any such shares which are
beneficially owned, directly or indirectly, by a Counterparty (or any of such Counterparty's affiliates or Associates) under any Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract)
to which such person or any of such person's affiliates or Associates is a Receiving Party; provided, however that the number of shares that a person owns beneficially pursuant to this clause (C) in connection with a particular Derivatives Contract
shall not exceed the number of Notional Securities with respect to such Derivatives Contract; provided, further, that the number of securities owned beneficially by each Counterparty (including their respective affiliates and Associates) under a
Derivatives Contract shall for purposes of this clause be deemed to include all securities that are owned beneficially, directly or indirectly, by any other Counterparty (or any of such other Counterparty's affiliates or Associates) under any
Derivatives Contract to which such first Counterparty (or any of such first Counterparty's affiliates or Associates) is a Receiving Party and this proviso shall be applied to successive Counterparties as appropriate; and (D) any such shares which
are owned beneficially within the meaning of this definition by any other person with whom such person is acting jointly or in concert with respect to the Company or any of its securities; and
(vi) "public announcement" shall mean disclosure in a press release reported by a national
news service in Canada, or in a document publicly filed by the Company or its agents under its profile on the System of Electronic Document Analysis and Retrieval at www.sedar.com.
(g) Notwithstanding any other provision to this §14.12, notice or any delivery given to an officer of the Company pursuant to this §14.12 may only be given by personal delivery,
facsimile transmission, email or other electronic transmission method made available by the Company, and shall be deemed to have been given and made only at the time it is served by personal delivery, email, electronic transmission or sent by
facsimile transmission (provided that receipt of confirmation of such transmission has been received) to an officer of the Company at the address of the principal executive offices of the Company; provided that if such delivery or electronic
communication is made on a day which is a not a Business Day or later than 5:00 p.m. (Vancouver time) on a day which is a Business Day, then such delivery or electronic communication shall be deemed to have been made on the subsequent day that is a
Business Day.
14.13 In no event shall any adjournment or postponement of a Meeting of Shareholders or the announcement thereof commence a new time
period for the giving of a Nominating Shareholder's notice as described in §14.12(c).
PART 15
POWERS AND DUTIES OF DIRECTORS
Powers of
Management
15.1 The directors must, subject to the Act and these Articles, manage or supervise the management of the business and affairs of the
Company and have the authority to exercise all such powers of the Company as are not, by the Act or by these Articles, required to be exercised by the shareholders of the Company.
Appointment of Attorney of
Company
15.2 The directors may from time to time, by power of attorney or other instrument, appoint any person to be the attorney of the Company
for such purposes, and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under these Articles and excepting the power to fill vacancies in the board of directors, to remove a director, to
change the membership of, or fill vacancies in, any committee of the directors, to appoint or remove officers appointed by the directors and to declare dividends) and for such period, and with such remuneration and subject to such conditions as the
directors may think fit. Any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorney as the directors think fit. Any such attorney may be authorized by the directors to sub-delegate
all or any of the powers, authorities and discretions for the time being vested in him or her.
PART 16
INTERESTS OF DIRECTORS AND OFFICERS
Obligation to Account for Profits
16.1 A director or senior officer who holds a disclosable interest (as that term is used in the Act) in a contract or transaction into which the Company
has entered or proposes to enter is liable to account to the Company for any profit that accrues to the director or senior officer under or as a result of the contract or transaction only if and to the extent provided in the Act.
Restrictions on Voting by Reason of Interest
16.2 A director who holds a disclosable interest in a contract or
transaction into which the Company has entered or proposes to enter is not entitled to vote on any directors' resolution to approve that contract or transaction, unless all the directors have a disclosable interest in that contract or transaction,
in which case any or all of those directors may vote on such resolution.
Interested Director Counted in Quorum
16.3 A director who holds a disclosable interest in a contract or transaction into which the Company has entered or proposes to enter and who is present
at the meeting of directors at which the contract or transaction is considered for approval may be counted in the quorum at the meeting whether or not the director votes on any or all of the resolutions considered at the meeting.
Disclosure of Conflict of Interest or Property
16.4 A director or senior officer who holds any office or
possesses any property, right or interest that could result, directly or indirectly, in the creation of a duty or interest that materially conflicts with that individual's duty or interest as a director or senior officer, must disclose the nature
and extent of the conflict as required by the Act.
Director Holding Other Office in the Company
16.5 A
director may hold any office or place of profit with the Company, other than the office of auditor of the Company, in addition to his or her office of director for the period and on the terms (as to remuneration or otherwise) that the directors may
determine.
No Disqualification
16.6 No director or intended director is disqualified by his or her office
from contracting with the Company either with regard to the holding of any office or place of profit the director holds with the Company or as vendor, purchaser or otherwise, and no contract or transaction entered into by or on behalf of the Company
in which a director is in any way interested is liable to be voided for that reason.
Professional Services by Director or Officer
16.7 Subject to
the Act, a director or officer, or any person in which a director or officer has an interest, may act in a professional capacity for the Company, except as auditor of the Company, and the director or officer or such person is entitled to
remuneration for professional services as if that director or officer were not a director or officer.
Director or Officer in Other Corporations
16.8 A director or officer may be or become a director, officer or employee of, or otherwise interested in, any person in which the Company may be interested as a shareholder or otherwise, and,
subject to the Act, the director or officer is not accountable to the Company for any remuneration or other benefits received by him or her as director, officer or employee of, or from his or her interest in, such other person.
PART 17
PROCEEDINGS OF DIRECTORS
Meetings of Directors
17.1 The directors may meet together for the conduct of business, adjourn and otherwise regulate their meetings as they think fit, and meetings of the
directors held at regular intervals may be held at the place, at the time and on the notice, if any, as the directors may from time to time determine.
Voting at Meetings
17.2 Questions arising at any meeting of directors are to be decided by a majority of votes and, in the case of an equality of votes, the chair of the
meeting does not have a second or casting vote.
Chair of Meetings
17.3 The following individual is
entitled to preside as chair at a meeting of directors:
(a) the chair of the board, if any;
(b) in the absence of the chair of the board, the president, if any, if the president is a director; or
(c) any other director chosen by the directors if:
(i) neither the chair of the board nor the president, if a director, is present at the meeting within 15 minutes after the time set for holding the meeting;
(ii) neither the chair of the board nor the president, if a director, is willing to chair the meeting; or
(iii) the chair of the board and the president, if a director, have advised the secretary, if any, or any other director, that they will not be present at the meeting.
Place of Meetings
17.4 Meetings of directors may be held at any place within or outside of Canada, or if so
approved by all of the directors, such meeting may be held entirely by means of an electronic or other communication facility that permits all persons participating in the meeting to communicate adequately with each other to the extent permitted by
the Act.
Meetings by Telephone or Other Communications Medium
17.5 A director may participate in a meeting
of the directors or of any committee of the directors:
(a) in person; or
(b) by telephone or by other communications medium if all directors participating in the meeting, whether in person or by telephone
or other communications medium, are able to communicate with each other.
A director who participates in a meeting in a manner contemplated by this §17.5 is deemed for all purposes of the Act and these
Articles to be present at the meeting and to have agreed to participate in that manner.
Calling of Meetings
17.6 A director may, and the secretary or an assistant secretary of the Company, if any, on the request of a director must, call a meeting of the
directors at any time.
Notice of Meetings
17.7 Other than for meetings held at regular intervals as
determined by the directors pursuant to §17.1, reasonable notice of each meeting of the directors, specifying the place, day and time of that meeting must be given to each of the directors by any method set out in §23.1 or orally or by
telephone.
When Notice Not Required
17.8 It is not necessary to give notice of a meeting of the directors
to a director if:
(a) the meeting is to be held immediately following a meeting of shareholders at which that director was
elected or appointed, or is the meeting of the directors at which that director is appointed; or
(b) the director has waived
notice of the meeting.
Meeting Valid Despite Failure to Give Notice
17.9 The accidental omission to give notice of any meeting of
directors to, or the non-receipt of any notice by, any director, does not invalidate any proceedings at that meeting.
Waiver of Notice of Meetings
17.10 Any director may send to the Company a document signed by him or her waiving notice of any past, present or future meeting or meetings of the directors and may at any time withdraw that waiver
with respect to meetings held after that withdrawal. After sending a waiver with respect to all future meetings and until that waiver is withdrawn, no notice of any meeting of the directors need be given to that director and all meetings of the
directors so held are deemed not to be improperly called or constituted by reason of notice not having been given to such director. Attendance of a director at a meeting of the directors is a waiver of notice of the meeting unless that director
attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
Quorum
17.11 The quorum necessary for the transaction of the business of the directors may be set by the directors and, if not so set, is deemed to be a majority of the directors or, if the number of
directors is set at one, is deemed to be set at one director, and that director may constitute a meeting.
Validity of Acts Where Appointment Defective
17.12 Subject to the Act, an act of a director or officer is not invalid merely because of an irregularity in the election or appointment or a defect in the qualification of that director or
officer.
Consent Resolutions in Writing
17.13 A resolution of the directors or of any committee of the
directors may be passed without a meeting:
(a) in all cases, if each of the directors entitled to vote on the resolution consents
to it in writing; or
(b) in the case of a resolution to approve a contract or transaction in respect of which a director has
disclosed that he or she has or may have a disclosable interest, if each of the other directors who have not made such a disclosure consents in writing to the resolution.
A consent in writing under this
§17.13 may be by signed document, fax, email or any other method of transmitting legibly recorded messages. Any electronic signature on a consent, whether digital or encrypted, shall be deemed to have the same force and effect as a manual
signature. A consent in writing may be in two or more counterparts which together are deemed to constitute one consent in writing. A resolution of the directors or of any committee of the directors passed in accordance with this §17.13 is
effective on the date stated in the consent in writing or on the latest date stated on any counterpart and is deemed to be a proceeding at a meeting of directors or of the committee of the directors and to be as valid and effective as if it had been
passed at a meeting of the directors or of the committee of the directors that satisfies all the requirements of the Act and all the requirements of these Articles relating to meetings of the directors or of a committee of the directors.
PART
18
EXECUTIVE AND OTHER COMMITTEES
Appointment and Powers of Executive Committee
18.1 The
directors may, by resolution, appoint an executive committee consisting of the director or directors that they consider appropriate, and this committee has, during the intervals between meetings of the board of directors, all of the directors'
powers, except:
(a) the power to fill vacancies in the board of directors;
(b) the power to remove a director;
(c) the power to change the membership of, or fill vacancies in, any committee of the directors; and
(d) such other powers, if any, as may be set out in the resolution or any subsequent directors' resolution.
Appointment and Powers of Other
Committees
18.2 The directors may, by resolution:
(a) appoint one or more committees (other than the executive committee) consisting of the director or directors that they consider appropriate;
(b) delegate to a committee appointed under §(a) any of the directors' powers, except:
(i) the power to fill vacancies in the board of directors;
(ii) the power to remove a director;
(iii) the power to change the membership
of, or fill vacancies in, any committee of the directors; and
(iv) the power to appoint or remove officers appointed by the
directors; and
(c) make any delegation referred to in §(b) subject to the conditions set out in the resolution or any
subsequent directors' resolution.
Obligations of Committees
18.3 Any committee appointed under §18.1 or §18.2, in the exercise of the
powers delegated to it, must:
(a) conform to any rules that may from time to time be imposed on it by the directors; and
(b) report every act or thing done in exercise of those powers at such times as the directors may require.
Powers of Board
18.4 The directors may, at any time, with respect to a committee appointed under §18.1 or
§18.2
(a) revoke or alter the authority given to the committee, or override a decision made by the committee, except as to
acts done before such revocation, alteration or overriding;
(b) terminate the appointment of, or change the membership of, the
committee; and
(c) fill vacancies in the committee.
Committee Meetings
18.5 Subject to §18.3(a) and unless the directors otherwise provide in the resolution appointing the committee or in any subsequent resolution, with
respect to a committee appointed under §18.1 or §18.2:
(a) the committee may meet and adjourn as it thinks proper;
(b) the committee may elect a chair of its meetings but, if no chair of a meeting is elected, or if at a meeting the chair of the
meeting is not present within 15 minutes after the time set for holding the meeting, the directors present who are members of the committee may choose one of their number to chair the meeting;
(c) a majority of the members of the committee constitutes a quorum of the committee; and
(d) questions arising at any meeting of the committee are determined by a majority of votes of the members present, and in case of an
equality of votes, the chair of the meeting does not have a second or casting vote.
PART 19
OFFICERS
Directors May Appoint Officers
19.1 The directors may, from time to time, appoint such officers, if any, as the directors determine and the directors may, at any time, terminate any such appointment.
Functions, Duties and Powers of Officers
19.2 The directors may, for each officer:
(a) determine the functions and duties of the officer;
(b) entrust to and confer on the officer any of the powers exercisable by the directors on such terms and conditions and with such restrictions as the directors think fit; and
(c) revoke, withdraw, alter or vary all or any of the functions, duties and powers of the officer.
Qualifications
19.3 No person may be appointed as an officer unless that person is qualified in accordance
with the Act. One person may hold more than one position as an officer of the Company. Any person appointed as the chair of the board, chair of a committee of the board or lead independent director, if any, must be a director. Any other officer need
not be a director.
Remuneration and Terms of Appointment
19.4 All appointments of officers are to be made
on the terms and conditions and at the remuneration (whether by way of salary, fee, commission, participation in profits or otherwise) that the directors thinks fit and are subject to termination at the pleasure of the directors, and an officer may
in addition to such remuneration be entitled to receive, after he or she ceases to hold such office or leaves the employment of the Company, a pension or gratuity.
PART 20
INDEMNIFICATION
Definitions
20.1 In this Part 20:
(a) "eligible party", in relation to a company, means an individual who:
(i) is or was a director or officer of the Company;
(ii) is or was a director or officer of another corporation
(A) at a time
when the corporation is or was an affiliate of the Company, or
(B) at the request of the Company; or
(iii) at the request of the Company, is or was, or holds or held a position equivalent to that of, a director or officer of a
partnership, trust, joint venture or other unincorporated entity,
and includes, except in the definition of "eligible proceeding" and Sections 163(1)(c) and (d) and 165 of the Act, the heirs and
personal or other legal representatives of that individual;
(b) "eligible penalty" means a judgment, penalty or fine
awarded or imposed in, or an amount paid in settlement of, an eligible proceeding;
(c) "eligible proceeding" means a
proceeding in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or holding or having held a position
equivalent to that of a director or officer of, the Company or an associated corporation
(i) is or may be joined as a party; or
(ii) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding;
(d) "expenses" has the meaning set out in the Act and includes costs, charges and expenses, including legal and other fees,
but does not include judgments, penalties, fines or amounts paid in settlement of a proceeding; and
(e) "proceeding"
includes any legal proceeding or investigative action, whether current, threatened, pending or completed.
Mandatory Indemnification of Eligible Parties
20.2 Subject to the Act, the Company must indemnify each eligible party and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be
liable, and the Company must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each eligible party is deemed to have contracted with the Company on
the terms of the indemnity contained in this §20.2.
Indemnification of Other Persons
20.3 Subject to any restrictions in the Act, the Company may agree to
indemnify and may indemnify any person (including an eligible party) against eligible penalties and pay expenses incurred in connection with the performance of services by that person for the Company.
Authority
to Advance Expenses
20.4 The Company may advance expenses to an eligible party to the extent permitted by and in accordance with the Act.
Non-Compliance with Act
20.5 Subject to the Act, the failure of an eligible party of the Company to comply
with the Act or these Articles or, if applicable, any former Companies Act or former Articles does not, of itself, invalidate any indemnity to which he or she is entitled under this Part 20.
Company May
Purchase Insurance
20.6 The Company may purchase and maintain insurance for the benefit of any eligible party (or the heirs or legal personal
representatives of any eligible party) against any liability incurred by any eligible party.
PART 21
DIVIDENDS
Payment of Dividends Subject to Special
Rights
21.1 The provisions of this Part 21 are subject to the rights, if any, of shareholders holding shares with special rights as to
dividends.
Declaration of Dividends
21.2 Subject to the Act, the directors may from time to time declare
and authorize payment of such dividends as they may deem advisable.
No Notice Required
21.3 The directors
need not give notice to any shareholder of any declaration under §21.2.
Record Date
21.4 The
directors must set a date as the record date for the purpose of determining shareholders entitled to receive payment of a dividend. The record date must not precede the date on which the dividend is to be paid by more than two months.
Manner of Paying
Dividend
21.5 A resolution declaring a dividend may direct payment of the dividend wholly or partly in money or by the distribution of specific
assets or of fully paid shares or of bonds, debentures or other securities of the Company or any other entity, or in any one or more of those ways.
Settlement of Difficulties
21.6 If any difficulty arises in regard to a distribution under §21.5, the directors may settle the difficulty as they deem advisable, and, in
particular, may:
(a) set the value for distribution of specific assets;
(b) determine that money in substitution for all or any part of the specific assets to which any shareholders are entitled may be
paid to any shareholders on the basis of the value so fixed in order to adjust the rights of all parties; and
(c) vest any such
specific assets in trustees for the persons entitled to the dividend.
When Dividend Payable
21.7 Any
dividend may be made payable on such date as is fixed by the directors.
Dividends to be Paid in Accordance with Number of Shares
21.8 All dividends on shares of any class or series of shares must be declared and paid according to the number of such shares held.
Receipt by Joint
Shareholders
21.9 If several persons are joint shareholders of any share, any one of them may give an effective receipt for any dividend, bonus
or other money payable in respect of the share.
Dividend Bears No Interest
21.10 No dividend bears interest
against the Company.
Fractional Dividends
21.11 If a dividend to which a shareholder is entitled includes a
fraction of the smallest monetary unit of the currency of the dividend, that fraction may be disregarded in making payment of the dividend and that payment represents full payment of the dividend.
Payment of
Dividends
21.12 Any dividend or other distribution payable in money in respect of shares may be paid (i) by cheque, made payable to the order of
the person to whom it is sent, and mailed to the registered address of the shareholder, or in the case of joint shareholders, to the registered address of the joint shareholder who is first named on the central securities register, or to the person
and to the address the shareholder or joint shareholders may direct in writing or (ii) with the consent of the Company and the shareholder, by wire transfer or other electronic means. In the case of payment of a dividend by cheque, mailing of such
cheque will, to the extent of the sum represented by the cheque (plus the amount of the tax required by law to be deducted), discharge all liability for the dividend unless such cheque is not paid on presentation or the amount of tax so deducted is
not paid to the appropriate taxing authority. In the case of payment of a dividend by wire transfer or other electronic means, the initiation of such payment by the Company will, to the extent of the sum represented by the transfer (plus the amount
of the tax required by law to be deducted), discharge all liability for the dividend unless the amount of tax so deducted is not paid to the appropriate taxing authority.
Capitalization of Retained
Earnings or Surplus
21.13 Notwithstanding anything contained in these Articles, the directors may from time to time capitalize any retained
earnings or surplus of the Company and may from time to time issue, as fully paid, shares or any bonds, debentures or other securities of the Company as a dividend representing the retained earnings or surplus so capitalized or any part thereof.
PART 22
ACCOUNTING RECORDS AND AUDITOR
Recording of Financial Affairs
22.1 The directors must cause adequate accounting records to be kept to record properly the financial affairs and condition of the Company and to comply with the Act.
Inspection of Accounting Records
22.2 Unless the directors determine otherwise, or unless otherwise determined
by ordinary resolution, no shareholder of the Company is entitled to inspect or obtain a copy of any accounting records of the Company.
Remuneration of Auditor
22.3 The directors may set the remuneration of the auditor of the Company.
PART 23
NOTICES
Method of
Giving Notice
23.1 Unless the Act or these Articles provide otherwise, a notice, statement, report or other record required or permitted by the
Act or these Articles (a "Notice") to be sent by or to a person may be sent by:
(a) mail addressed to the person at the applicable address for that person as
follows:
(i) for a Notice mailed to a shareholder, the shareholder's registered address;
(ii) for a Notice mailed to a director or officer, the prescribed address for mailing shown for the director or officer in the records
kept by the Company or the mailing address provided by the recipient for the sending of Notices of that class;
(iii) in any other
case, the mailing address of the intended recipient;
(b) delivery at the applicable address for that person as follows, addressed
to the person:
(i) for a Notice delivered to a shareholder, the shareholder's registered address;
(ii) for a Notice delivered to a director or officer, the prescribed address for delivery shown for the director or officer in the
records kept by the Company or the delivery address provided by the recipient for the sending of Notices of that class;
(iii) in
any other case, the delivery address of the intended recipient;
(c) sending the Notice by fax to the fax number provided by the
intended recipient for the sending of Notices that class;
(d) sending the Notice by email to the email address provided by the
intended recipient for the sending of Notices of that class;
(e) sending the Notice by other means of electronic transmission
accessible by the intended recipient for the sending of Notices of that class in accordance with applicable law; and
(f) physical
delivery to the intended recipient.
Press Release
23.2 Unless the Act or these Articles provide otherwise,
a Notice to be sent to a shareholder shall be deemed conclusively to have been given or made, and the obligation to give any Notice shall, unless otherwise required by applicable laws and regulations, be deemed conclusively to have been fully
satisfied upon issuing a press release complying with applicable laws and regulations if deemed by the board of directors to be a reasonable or appropriate means of providing such Notice.
Deemed Receipt of
Mailing
23.3 A notice, statement, report or other record that is:
(a) mailed to a person by ordinary mail to the applicable address for that person referred to in §23.1 is deemed to be received by the person to whom it was mailed on the day (Saturdays,
Sundays and holidays excepted) following the date of mailing;
(b) faxed to a person to the fax number provided by that person under §23.1 is deemed to be received by the person to
whom it was faxed on the day it was faxed;
(c) emailed to a person to the e-mail address provided by that person under §23.1
is deemed to be received by the person to whom it was e-mailed on the day that it was emailed; and
(d) sent to a person by other
means of electronic transmission under §23.1 is deemed to be received by the person to whom it was transmitted on the day that such transmission occurred.
Certificate of Sending
23.4 A certificate signed by the secretary, if any, or other officer of the Company or of any other corporation acting in that capacity on behalf of the
Company stating that a notice, statement, report or other record was sent in accordance with §23.1 is conclusive evidence of that fact.
Notice to Joint Shareholders
23.5 A notice, statement, report or other record may be provided by the Company to the joint shareholders of a share by providing such record to the
joint shareholder first named in the central securities register in respect of the share.
Notice to Legal Personal Representatives and Trustees
23.6 A notice, statement, report or other record may be provided by the Company to the persons entitled to a share in consequence of the death, bankruptcy or incapacity of a shareholder by:
(a) mailing the record, addressed to them:
(i) by name, by the title of the legal personal representative of the deceased or incapacitated shareholder, by the title of trustee of the bankrupt shareholder or by any similar description;
and
(ii) at the address, if any, supplied to the Company for that purpose by the persons claiming to be so entitled; or
(b) if an address referred to in §(a)(ii) has not been supplied to the Company, by giving the notice in a manner in which it
might have been given if the death, bankruptcy or incapacity had not occurred.
Undelivered Notices
23.7 If
on two consecutive occasions, a notice, statement, report or other record is sent to a shareholder pursuant to §23.1 and on each of those occasions any such record is returned because the shareholder cannot be located, the Company shall not be
required to send any further records to the shareholder until the shareholder informs the Company in writing of his or her new address.
PART
24
PROHIBITIONS
Definitions
24.1 In this Part 24:
(a) "designated security" means:
(i) a voting security of the Company;
(ii) a security of the Company that is
not a debt security and that carries a residual right to participate in the earnings of the Company or, on the liquidation or winding up of the Company, in its assets; or
(iii) a security of the Company convertible, directly or indirectly, into a security described in §(a) or §(b);
(b) "security" has the meaning assigned in the Securities Act (British Columbia); and
(c) "voting security" means a security of the Company that:
(i) is
not a debt security; and
(ii) carries a voting right either under all circumstances or under some circumstances that have occurred
and are continuing.
Application
24.2 §24.3 does not apply to the Company if and for so long as it is
a public company, a private company which is no longer eligible to use the private issuer exemption under the Securities Act (British Columbia) or a pre-existing reporting company which has the Statutory Reporting Company Provisions as part
of its Articles or a company to which the Statutory Reporting Company Provisions apply.
Consent Required for Transfer of Shares or Designated Securities
24.3 No share or designated security may be sold, transferred or otherwise disposed of without the consent of the directors and the directors are not required to give any reason for refusing to
consent to any such sale, transfer or other disposition.
PART 25
SPECIAL RIGHTS AND RESTRICTIONS
CLASS A EXCHANGEABLE SUBORDINATE VOTING SHARES
Special Rights and Restrictions
25.1 The Class A Shares as a class shall have attached thereto the special rights and restrictions specified in this Part 25.
DIVIDENDS
Dividend Rights
25.2 Each Class A Shareholder shall
be entitled to receive, and the Company shall pay thereon, as and when declared by the board of directors, a dividend on each Class A Share in an amount in cash for each Class A Share equal to the cash distribution declared on each BIP Unit on each
BIP Distribution Declaration Date multiplied by the Conversion Factor in effect on the Record Date of such dividend (the "Class A Dividend"), it being understood that Class A Shareholders will not be entitled to any dividends other than the
Class A Dividend.
Unpaid Dividends
25.3 If the full amount of a Class A Dividend is not declared on a BIP
Distribution Declaration Date, or is declared but is not paid on the payment date, then such Class A Dividend shall accrue and accumulate, whether or not the Company has earnings, whether or not there are funds legally available for the payment
thereof and whether or not such distributions are earned, declared or authorized (such amounts, the "Unpaid Dividends"). Any dividend payment made on the Class A Shares shall first be credited against the earliest Unpaid Dividends due with
respect to such Class A Shares which remains payable.
Payment of Dividends
25.4 Cheques of the Company may
be issued in respect of all Class A Dividends contemplated by §25.2 and the sending of such cheque to each Class A Shareholder will satisfy the cash dividend represented thereby unless the cheque is not paid on presentation. Subject to the
requirements of applicable Law with respect to unclaimed property, no Class A Shareholder will be entitled to recover by action or other legal process against the Company any dividend that is represented by a cheque that has not been duly presented
to the Company's bankers for payment or that otherwise remains unclaimed for a period of two years from the date on which such dividend was first payable.
Record and Payment Dates
25.5 The Record Date with respect to any Class A Dividend declared by the board of directors and the payment date of such Class A Dividend will be the
same dates as the Record Date and the payment date, respectively, for the corresponding distribution declared on the BIP Units, each as approved by the board of directors.
RANKING
Ranking of the Class A Shares
25.6 The Class A Shares shall, as to the payment of dividends and return of
capital in a Liquidation Event, rank junior to the Preferred Shares and senior to the Class B Shares, the Class C Shares and any other shares ranking junior to the Class A Shares with respect to priority in payment of dividends and return of capital
in the event of the liquidation, dissolution or winding-up of the Company.
VOTING
Voting Rights
25.7 Except as expressly provided herein, each Class A Shareholder will be entitled to receive notice of, and to attend and vote at, all meetings of shareholders of the Company, except for
meetings at which only holders of another specified class or series of shares are entitled to vote separately as a class or series. Each Class A Shareholder shall be entitled to cast one vote for each Class A Share held at the record date for the
determination of shareholders entitled to vote on any matter.
25.8 Except as otherwise expressly provided herein or as required by Law, the Class A
Shareholders and Class B Shareholders will vote together and not as separate classes.
25.9 Subject to any rights of the holders of any series of
Preferred Shares to elect directors under specified circumstances, the holders of the outstanding Class A Shares and Class B Shares, voting together, shall be entitled to vote in respect of the election of all directors of the Company.
Amendment with Approval of Class A Shareholders
25.10 In addition to any other approvals required by Law, any
approval given by the Class A Shareholders to add to, change or remove any right, privilege, restriction or condition attaching to the Class A Shares or any other matter requiring the approval or consent of the Class A Shareholders as a separate
class will be deemed to have been sufficiently given if it will have been given in accordance with applicable Law, subject to a minimum requirement that such amendment be approved by not less than 66 2/3% of the votes cast on such amendment at a
meeting of Class A Shareholders duly called and held at which the Class A Shareholders holding at least 10% of the outstanding Class A Shares at that time are present or represented by proxy; provided that such approval must be given also by the
affirmative vote of holders of not less than 66 2/3% of the Non-Affiliated Holders represented in person or by proxy at the meeting. If at any such meeting the Class A Shareholders holding at least 10% of the outstanding Class A Shares at as of the
Record Date of such meeting are not present or represented by proxy within one-half hour after the time appointed for such meeting, then the meeting will be adjourned to such date not less than five days thereafter and to such time and place as may
be designated by the chairman of such meeting. At such reconvened meeting, the Class A Shareholders present or represented by proxy thereat may transact the business for which the meeting was originally called and a resolution passed thereat by the
affirmative vote of not less than 66 2/3% of the votes cast on such amendment at such reconvened meeting excluding the BIP-Affiliated Class A Shareholders shall be effective.
EXCHANGE
RIGHTS
Exchange at the Option of the Class A Shareholder
25.11 Subject to applicable Law and the due
exercise by BIP of the Exchange-Redemption Call Right, at any time from and after the date of the issuance of the Class A Shares, each Class A Shareholder shall have the right (the "Exchange Right") to require the Company to redeem all or
such portion of the Class A Shares registered in the name of such Class A Shareholder specified in a Notice of Exchange delivered to the Transfer Agent by or on behalf of such Class A Shareholder (such Class A Shares being hereafter referred to as
"Tendered Class A Shares" and such Class A Shareholder, the "Tendering Class A Shareholder") for the BIP Units Amount per Tendered Class A Share or, if the Company elects in its sole and absolute discretion, the Cash Amount (in lieu of
the BIP Units Amount per Tendered Class A Share), plus, in either case, a cash amount equal to any Unpaid Dividends per Tendered Class A Share.
Notice of Exchange
25.12 A Class A Shareholder must deliver a Notice of Exchange either electronically (by electronic mail or by any other electronic procedure that may be established by the Transfer Agent and
communicated to the Class A Shareholders by the Company or the Transfer Agent) or physically (by mail, courier, hand delivery or otherwise) to any office of the Transfer Agent prior to the issuance by the Company of a Notice of Class A Redemption or
the announcement of a Liquidation Event in order to exercise his, her or its Exchange Right. The Transfer Agent shall promptly notify the Company, BIP and, until such time as the Rights Agreement has been terminated, BAM, of the receipt of a Notice
of Exchange.
Satisfaction of Exchange Rights
25.13 Upon receipt by the Transfer Agent of a Notice of
Exchange and such additional documents and instruments as the Company or the Transfer Agent may reasonably require, and provided that BIP has not exercised the Exchange-Redemption Call Right, the Company will redeem the applicable Tendered Class A
Shares on or prior to the Specified Exchange Date. The Company will deliver or cause to be delivered to the Tendering Class A Shareholder, at the address of the holder recorded in the register of the Company for the Class A Shares or at the address
specified in the holder's Notice of Exchange, either (i) the BIP Units Amount, or (ii) the Cash Amount, as the Company may determine in its sole and absolute discretion, together with a cash amount for each Tendered Class A Share equal to any
Unpaid Dividends per Tendered Class A Share ((i) or (ii), plus such Unpaid Dividends collectively being the "Exchange Consideration") and such delivery of such Exchange Consideration by or on behalf of the Company by the Transfer Agent will
be deemed to be payment of and will satisfy and discharge all liability for the Exchange Rights so exercised. Should the Company elect to satisfy Exchange Rights by delivering the Cash Amount, then the payment of such amount shall be made in the
manner set forth in §25.4.
25.14 Any Tendering Class A Shareholder shall have no further right, with respect to any Tendered Class A Shares
redeemed, repurchased or exchanged, to receive any dividends on Class A Shares with a Record Date on or after the date on which the Transfer Agent receives such Notice of Exchange. Each Tendering Class A Shareholder shall continue to own each Class
A Share subject to any Notice of Exchange, and be treated as a Class A Shareholder with respect to each such Class A Share for all other purposes of these Articles, until such Class A Share has been redeemed in accordance with §25.13 or
repurchased or exchanged in accordance with the Rights Agreement, as applicable, for the Secondary Exchange Amount in accordance with §25.16. A Tendering Class A Shareholder shall have no rights as a unitholder of BIP with respect to any BIP
Units to be received by such Tendering Class A Shareholder in exchange for Tendered Class A Shares pursuant to §25.11 until the Transfer Agent has issued such BIP Units to such Tendering Class A Shareholder.
25.15 Notwithstanding anything to the contrary set forth herein, the Company will not be obligated to redeem Tendered Class A Shares to the extent that such redemption would be contrary to solvency
requirements or other provisions of applicable Law. If the Company believes that it would not be permitted by any such requirements or other provisions to redeem the Tendered Class A Shares, and BIP has not exercised its Exchange-Redemption Call
Right with respect to the Tendered Class A Shares, the Company will only be obligated to redeem the maximum number of Tendered Class A Shares (rounded down to a whole number of Class A Shares) that would not be contrary to such requirements or other
provisions. The Company will notify any such Tendering Class A Shareholder at least one Business Day prior to the Specified Exchange Date as to the number of Tendered Class A Shares that will be redeemed by the Company. Where there is more than one
Tendering Class A Shareholder, the Company will redeem the maximum number of Tendered Class A Shares that would not be contrary to such requirements or other provisions among such Tendering Class A Shareholders on a pro rata basis.
Secondary Exchange Rights
25.16 For so long as the Rights Agreement has not been terminated, if a Tendering
Class A Shareholder has not received the Exchange Consideration with respect to any Tendered Class A Shares by the Close of Business on the applicable Specified Exchange Date for any reason, then, on the terms and subject to the conditions set forth
in the Rights Agreement, which the Class A Shareholders shall have a right to enforce, such Tendering Class A Shareholder shall be entitled to receive from BAM the Secondary Exchange Amount with respect to each such Tendered Class A Share no later
than the applicable Secondary Exchange Date (the "Secondary Exchange Right"). The Company shall send to BAM and to the Rights Agent on the applicable Specified Exchange Date a notice to the effect that the Tendering Class A Shareholder has
not received the Exchange Consideration and such notice will set forth the identity of the Tendering Class A Shareholder, the number of Tendered Class A Shares, the amounts of such Exchange Consideration then not paid and will be otherwise
consistent with the definition of "Company Notice" in the Rights Agreement.
No Fractional BIP Units
25.17 Notwithstanding anything to the contrary set forth herein, no fractional BIP Units shall be issued in connection with the satisfaction of Exchange
Rights, in connection with a redemption of a Class A Share or in connection with a Liquidation Event. In lieu of any fractional BIP Units to which the Tendering Class A Shareholder would otherwise be entitled, the Company shall pay a cash amount
equal to the BIP Unit Value on the Trading Day immediately preceding the Exchange Date multiplied by such fraction of a BIP Unit. In lieu of any fractional BIP Units to which the Tendering Class A Shareholder would otherwise be entitled pursuant to
the Rights Agreement, the Rights Agent shall pay a cash amount as determined in accordance with the terms and conditions of the Rights Agreement.
Withholding Taxes
25.18 Each
Tendering Class A Shareholder shall be required to pay to the Company the amount of any tax withholding due upon the redemption of Tendered Class A Shares pursuant to §25.11 to §25.13 and will be deemed to have authorized the Company to
retain such portion of the Exchange Consideration as the Company reasonably determines is necessary to satisfy its tax withholding obligations. Before making any withholding pursuant to this §25.18, the Company shall give each Tendering Class A
Shareholder within three (3) Business Days after the Company's receipt of a Notice of Exchange from such Tendering Class A Shareholder, notice of the Company's good faith estimate of the amount of any anticipated tax withholding (together with the
legal basis therefor) due upon the redemption of the Tendered Class A Shares subject to such Notice of Exchange, provide the Tendering Class A Shareholder with sufficient opportunity to provide any forms or other documentation or take such other
steps in order to avoid or reduce such tax withholding, and reasonably cooperate with the Tendering Class A Shareholder in good faith to attempt to reduce any amounts that would otherwise be withheld pursuant to this §25.18; provided that any
determination with respect to the tax withholding shall be made by the Company, BIP or an affiliate of BIP, as applicable, in its sole discretion exercised in good faith.
COMPANY REDEMPTION RIGHTS
Company Redemption
25.19 If the Company delivers or causes to be delivered a Notice of Class A Redemption to the
Class A Shareholders, it shall redeem all of the issued and outstanding Class A Shares on the Specified Class A Redemption Date. The Company may deliver a Notice of Class A Redemption at any time, in its sole discretion and subject to applicable
Law, including in any of the following circumstances:
(a) the total number of Class A Shares outstanding decreases by 50% or more
over any 12-month period;
(b) a Person acquires 90% of the BIP Units in a take-over bid (as defined by Applicable Securities
Laws);
(c) the holders of BIP Units approve an acquisition of BIP by way of arrangement or amalgamation;
(d) the holders of BIP Units approve a restructuring or other reorganization of BIP;
(e) there is a sale of all or substantially all the assets of BIP;
(f) there is a change of Law (whether by legislative, governmental or judicial action), administrative practice or interpretation, or a change in circumstances of the Company and the
shareholders of the Company, that may result in adverse tax consequences for the Company or the shareholders of the Company; or
(g) the board, in its good faith, concludes that the holders of BIP Units or the Class A Shareholders are adversely impacted by a
fact, change, or other circumstance relating to the Company.
Right of Class B Shareholders to Cause Redemption of Class A Shares
25.20 The Class B Shareholders may, at any time and in their sole discretion, deliver a notice to the Company specifying a date upon which the Company shall redeem all of the issued and outstanding
Class A Shares (provided that such specified date is no less than 60 days from the date on which the Class B Shareholders deliver such notice), and as soon as reasonably practicable after the receipt of such notice, the Company shall, subject to
applicable Law, deliver a Notice of Class A Redemption to the Class A Shareholders and, without the consent of the Class A Shareholders, shall redeem all of the Class A Shares on the Specified Class A Redemption Date.
Redemption Procedure
25.21 In the event of a redemption of the Class A Shares, each Class A Shareholder shall be
considered a Tendering Class A Shareholder and each Class A Share shall be considered a Tendered Class A Share for the purposes of §25.19 to §25.22, and the Company shall, at or prior to Close of Business on the Specified Class A
Redemption Date, pay to each Tendering Class A Shareholder either (i) the BIP Units Amount, or (ii) the Cash Amount, as the Company may determine in its sole and absolute discretion, together with a cash amount for each Tendered Class A Share
equal to any Unpaid Dividends per Tendered Class A Share ((i) or (ii), plus such Unpaid Dividends collectively being the "Redemption Consideration") and such delivery of such Redemption Consideration by or on behalf of the Company by the
Transfer Agent will be deemed to be payment of and will satisfy and discharge all liability for the redemption of the Class A Shares. Should the Company elect to satisfy its obligation to redeem the Class A Shares by delivering the Cash Amount, then
the payment of such amount shall be made in the manner set forth in §25.4.
25.22 §25.14 to §25.18 shall apply in their entirety,
mutatis mutandis, to a redemption of the Class A Shares.
Exchange-Redemption Call Right
25.23 Notwithstanding the provisions in §25.11 to §25.22 above,
(a) in the event the Company receives a Notice of Exchange from a Tendering Class A Shareholder, BIP shall have an overriding right to acquire, or cause its affiliate to acquire all, but not
less than all, of the Tendered Class A Shares from the Tendering Class A Shareholder by delivering the Exchange Consideration (the form of Exchange Consideration to be determined by BIP in its sole and absolute discretion) in accordance with
§25.11 to §25.18, mutatis mutandis, in satisfaction of the obligations of the Company, and
(b) in the event the Company provides a Notice of Class A Redemption to each Class A
Shareholder, BIP shall have an overriding right to acquire, or cause its affiliate to acquire all, but not less than all, of the Class A Shares from each Class A Shareholder by delivering the Redemption Consideration (the form of Redemption
Consideration to be determined by BIP in its sole and absolute discretion) in accordance with §25.19 to §25.22, mutatis mutandis, in satisfaction of the obligations of the Company as set out therein (the right in either (a)
or (b) being the "Exchange-Redemption Call Right"),
and in the event of the exercise by BIP of the Exchange-Redemption Call Right, each Tendering Class A Shareholder will be obligated to
sell all Tendered Class A Shares held by such Tendering Class A Shareholder to BIP (or its affiliate, as applicable) on delivery by BIP (or its affiliate, as applicable) to such Tendering Class A Shareholder of the Exchange Consideration or the
Redemption Consideration, as applicable, and the Company will have no obligation to pay any Exchange Consideration or Redemption Consideration to the holders of such Class A Shares so purchased by BIP (or its affiliate, as applicable).
25.24 In order to exercise its Exchange-Redemption Call Right, BIP must notify the Transfer Agent in writing, as agent for the holders of Class A Shares,
and the Company, of its intention to exercise such right at least 3 days before the Specified Exchange Date or at least 10 days before the Specified Class A Redemption Date, as applicable. Delivery by BIP to the Transfer Agent of a standing
direction as to any exercise of the Exchange-Redemption Call Right in respect of the exercise of Exchange Rights shall satisfy the notification requirements set forth in this §25.24.
LIQUIDATION
Liquidation Rights
25.25 Upon any liquidation,
dissolution, winding up of the Company or any other distribution of its assets among its shareholders, whether voluntary or involuntary (a "Liquidation Event"), including where substantially concurrent with the liquidation, dissolution, or
winding up of BIP, whether voluntary or involuntary (a "BIP Liquidation Event"), each Class A Shareholder shall, subject to the exercise of the Liquidation Call Right, be entitled to be paid out of the assets of the Company legally available
for distribution on the effective date of the Liquidation Event (the "Liquidation Date") an amount in cash per Class A Share then held by them equal to the BIP Unit Value on the Trading Day immediately preceding the public announcement of the
Liquidation Event (the "Liquidation Reference Date") multiplied by the Conversion Factor (and together with a cash amount for each Class A Share equal to any Unpaid Dividends per Class A Share, the "Liquidation Amount").
Notwithstanding the foregoing, in connection with a Liquidation Event, including where substantially concurrent with a BIP Liquidation Event, if the Company, in its sole and absolute discretion elects, it may, subject to applicable Law, redeem all
of the outstanding Class A Shares in exchange for such number of BIP Units per Class A Share equal to the Conversion Factor in effect on the Liquidation Reference Date, together with a cash amount per Class A Share equal to any Unpaid Dividends per
Class A Share in accordance with §25.21 and §25.22, in lieu of paying the Liquidation Amount.
25.26 The rights of the Class A Shareholders to receive the amount set forth in §25.25 is subject
to:
(a) the prior rights of holders of all classes and series of Preferred Shares and any other class of shares ranking in
priority with the Class A Shares;
(b) prior payment in full to each Tendering Class A Shareholder and Tendering Class C
Shareholder that submitted a Notice of Exchange or a Notice of Class C Retraction, as applicable, at least 10 days prior to the date of the Liquidation Event of the Exchange Consideration (in the case of the Tendering Class A Shareholders) and the
Class C Retraction Amount (in the case of the Tendering Class C Shareholders); and
(c) prior payment in full to each Tendering
Class B Shareholder that submitted a Notice of Class B Retraction at least 30 days prior to the date of the Liquidation Event of the Cash Amount.
25.27 If, upon any such Liquidation Event, the assets of the Company are insufficient to make payment in full to all Class A Shareholders of the foregoing
amounts set forth in §25.25 with respect to the Liquidation Event, then such assets (or consideration) shall be distributed among the Class A Shareholders at the time outstanding, rateably in proportion to the full amounts to which they would
otherwise be respectively entitled to receive under §25.25.
BIP Liquidation Call Right
25.28 Notwithstanding §25.25, BIP will have the overriding right (the "Liquidation Call Right"), in the event of and notwithstanding the
occurrence of any Liquidation Event, to purchase from, or cause its affiliate to purchase from, all but not less than all of the Class A Shareholders on the Liquidation Date all but not less than all of the Class A Shares held by each such holder in
exchange for the issuance by BIP of such number of BIP Units per Class A Share equal to the Conversion Factor in effect on the Liquidation Reference Date (and together with a cash amount for each Class A Share equal to any Unpaid Dividends per Class
A Share, the "Liquidation Call Consideration"). In the event of the exercise of a Liquidation Call Right, each such Class A Shareholder will be obligated on the Liquidation Date to sell all the Class A Shares held by such holder to BIP on the
Liquidation Date upon issuance by BIP to the holder of the Liquidation Call Consideration for each such Class A Share and the Company will have no obligation to pay any Liquidation Amount to the holders of such Class A Shares so purchased by
BIP.
25.29 In order to exercise the Liquidation Call Right, BIP must notify the Transfer Agent in writing, as agent for the Class A Shareholders and
the Company, of its intention to exercise such right at least 30 days before the Liquidation Date in the case of a voluntary liquidation, dissolution or winding up of the Company and at least five Business Days before the Liquidation Date in the
case of an involuntary liquidation, dissolution or winding up of the Company. If BIP exercises the Liquidation Call Right in accordance with this §25.29, all obligations of the Company under §25.25 to §25.27 will terminate and on the
Liquidation Date BIP will purchase and Class A Shareholders will sell all of their Class A Shares then outstanding for a price per unit equal to the Liquidation Call Consideration.
Automatic Redemption
Rights
25.30 Subject to the exercise of the Liquidation Call Right, in connection with a BIP Liquidation Event, including where substantially
concurrent with a Liquidation Event, the Company shall, subject to applicable Law, redeem all outstanding Class A Shares on the day prior to the effective date of the BIP Liquidation Event for, in its sole and absolute discretion, (i) an amount in
cash per share equal to the BIP Unit Value on the Trading Day immediately preceding the public announcement of the BIP Liquidation Event multiplied by the Conversion Factor (together with a cash amount for each Class A Share equal to any Unpaid
Dividends per Class A Share), or (ii) such number of BIP Units equal to the Conversion Factor in effect on the Trading Day immediately preceding the public announcement of the BIP Liquidation Event (together with a cash amount for each Class A Share
equal to any Unpaid Dividends per Class A Share).
OTHER RIGHTS AND RESTRICTIONS
Conversion of Class A Shares
25.31 Any BIP-Affiliated Class A Shareholder shall be entitled at any time to have any or all of such BIP-Affiliated Class A Shareholder's Class A Shares converted into Class C Shares at a
conversion rate equal to one Class C Share for each Class A Share in respect of which the conversion right is exercised. The right of conversion herein provided for may be exercised by notice in writing given to the Transfer Agent (a "Conversion
Notice"), which notice shall specify the number of Class A Shares that the BIP-Affiliated Class A Shareholder desires to have converted. Upon receipt of a Conversion Notice, the Company shall, subject to applicable Law, promptly issue to the
converting BIP-Affiliated Class A Shareholder the requisite number of Class C Shares and the Transfer Agent shall cancel the converted Class A Shares subject to the Conversion Notice effective concurrently therewith.
Call Rights
25.32 Each Class A Shareholder, whether a registered holder or a beneficial holder, by virtue of
becoming and being such a holder will be deemed to acknowledge each of the Exchange-Redemption Call Right and the Liquidation Call Right, in each case, in favour of BIP, and the overriding nature thereof in connection with the exercise of Exchange
Rights, the liquidation, dissolution or winding-up of the Company or any other distribution of the assets of the Company among its shareholders for the purpose of winding up its affairs, or the retraction or redemption of Class A Shares, as the case
may be, and to be bound thereby in favour of BIP as herein provided.
PART 26
SPECIAL RIGHTS AND RESTRICTIONS
CLASS B MULTIPLE VOTING SHARES
Special Rights and Restrictions
26.1 The Class B Shares as a class shall have attached thereto the special rights and restrictions specified in this Part 26.
Dividend Rights
26.2 Except as set out in §26.3, the Class B Shareholders shall not be entitled to
receive any dividends on the Class B Shares.
Stock Dividends
26.3 In the event a dividend is declared and
paid on the Class A Shares consisting of Class A Shares, the board shall, subject to applicable Law, contemporaneously declare and pay an equivalent dividend on the Class B Shares consisting of Class B Shares.
Ranking of the Class B Shares
26.4 The Class B Shares shall, as to the return of capital in the event of the
liquidation, dissolution or winding-up of the Company, rank junior to the Preferred Shares and to the Class A Shares and senior to the Class C Shares and any other shares ranking junior to the Class B Shares with respect to priority in the return of
capital in a Liquidation Event.
Voting Rights
26.5 Except as expressly provided herein, each Class B
Shareholder will be entitled to receive notice of, and attend and vote at, all meetings of shareholders of the Company, except for meetings at which only holders of another specified class or series of shares are entitled to vote separately as a
class or series. Each Class B Shareholder will be entitled to cast a number of votes per Class B Share equal to: (i) the number that is three times the number of Class A Shares then issued and outstanding, divided by (ii) the number of Class
B Shares then issued and outstanding.
26.6 Except as otherwise expressly provided herein or as required by Law, the Class A Shareholders and the
Class B Shareholders will vote together and not as separate classes.
26.7 At any time that no Class A Shares are outstanding or for any vote held
only in respect of the Class B Shares, each Class B Shareholder will be entitled to cast one vote per Class B Share.
26.8 Subject to any rights of
the holders of any series of Preferred Shares to elect directors under specified circumstances, the holders of the outstanding Class A Shares and Class B Shares, voting together, shall be entitled to vote for the election of all directors of the
Company.
Amendment with
Approval of Class B Shareholders
26.9 In addition to any other approvals required by Law, the rights, privileges, restrictions and conditions
attached to the Class B Shares as a class may be added to, changed or removed but only with the approval of the Class B Shareholders given as hereinafter specified.
26.10 The approval of the Class B Shareholders to add to, change or remove any right, privilege, restriction or condition attaching to the Class B Shares as a class or in respect of any other matter
requiring the consent of the holders of the Class B Shareholders may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be given by resolution signed by all the Class B Shareholders or passed
by the affirmative vote of at least two thirds of the votes cast at a meeting of the Class B Shareholders duly called for that purpose. On every poll taken at every meeting of the Class B Shareholders as a class, each Class B Shareholder entitled to
vote thereat shall have one vote in respect of each Class B Share held.
Retraction at the Option of the Class B Shareholder
26.11 Subject to applicable Law, at any time from and after the date of the issuance of the Class B Shares, each Class B Shareholder shall have the right (the "Class B Retraction
Right") to require the Company to redeem all or such portion of the Class B Shares registered in the name of such Class B Shareholder specified in a Notice of Class B Retraction delivered to the Company by or on behalf of such Class B
Shareholder (such Class B Shares being hereafter referred to as "Tendered Class B Shares" and such Class B Shareholder, the "Tendering Class B Shareholder") for the Cash Amount (the "Class B Retraction Amount").
Notice of Class B Retraction
26.12 A Class B Shareholder must deliver a Notice of Class B Retraction to the
registered office of the Company in order to exercise his, her or its Class B Retraction Right.
Satisfaction of Retraction Right
26.13 Upon receipt by Company of a Notice of Class B Retraction and such additional documents and instruments as the Company may reasonably require, the Company shall redeem the Tendered Class B
Shares on or prior to the Specified Class B Retraction Date. The Company will deliver or cause to be delivered to the Tendering Class B Shareholder, at the address of the holder recorded in the register of the Company for the Class B Shares or at
the address specified in the holder's Notice of Class B Retraction, the Class B Retraction Amount, and such delivery of such Class B Retraction Amount by or on behalf of the Company, will be deemed to be payment of and will satisfy and discharge all
liability for the Class B Retraction Right so exercised.
26.14 Each Tendering Class B Shareholder shall continue to own each Class B Share subject to
any Notice of Class B Retraction, and be treated as a Class B Shareholder with respect to each such Class B Share for all other purposes of these Articles, until such Class B Share has been redeemed by the Company in accordance with §26.11 to
§26.16.
26.15 Notwithstanding anything to the contrary set forth herein, the Company will not be obligated to redeem Tendered Class B Shares to the extent that such redemption would be contrary to solvency
requirements or other provisions of applicable Law.
Withholding Taxes
26.16 Each Tendering Class B
Shareholder shall be required to pay to the Company the amount of any tax withholding due upon the redemption of Tendered Class B Shares pursuant to §26.11 to §26.13 and will be deemed to have authorized the Company to retain such portion
of the Class B Retraction Amount as the Company reasonably determines is necessary to satisfy its tax withholding obligations. Before making any withholding pursuant to this §26.16, the Company shall give each Tendering Class B Shareholder
within three (3) Business Days after the Company's receipt of a Notice of Class B Retraction from such Tendering Class B Shareholder, notice of the Company's good faith estimate of the amount of any anticipated tax withholding (together with the
legal basis therefor) due upon the redemption of the Tendered Class B Shares subject to such Notice of Class B Retraction, provide the Tendering Class B Shareholder with sufficient opportunity to provide any forms or other documentation or take such
other steps in order to avoid or reduce such tax withholding, and reasonably cooperate with the Tendering Class B Shareholder in good faith to attempt to reduce any amounts that would otherwise be withheld pursuant to this §26.16; provided that
any determination with respect to the tax withholding shall be made by the Company in its sole discretion exercised in good faith.
Liquidation Rights
26.17 Upon any Liquidation Event, including where substantially concurrent with a BIP Liquidation Event, subject to the following sentence, the Class B Shareholders shall be entitled to be paid out
of the assets of the Company legally available for distribution on the Liquidation Date an amount in cash per Class B Share then held by them equal to the BIP Unit Value for each such Class B Share. At any time no Class C Shares are outstanding, the
Class B Shareholders shall be entitled to receive on the Liquidation Date the assets and property of the Company remaining, if any, after the prior payments of the amounts set forth in §26.18.
26.18 The rights of the Class B Shareholders to receive the amount set forth in §26.17 is subject to the prior payment of the amounts set forth in §25.26(b) and §25.26(c) and to the
prior rights of holders of all classes and series of Preferred Shares, Class A Shares and any other class of shares ranking in priority or rateably with the Class B Shares.
26.19 If, upon any such Liquidation Event, the assets of the Company, after payment of any amounts owed to holders of all classes of shares ranking in priority to the Class B Shares, shall be
insufficient to make payment in full to all Class B Shareholders of the foregoing amounts set forth in §26.17 with respect to the Liquidation Event, then such assets (or consideration) shall be distributed among the Class B Shareholders at the
time outstanding, rateably in proportion to the full amounts to which they would otherwise be respectively entitled to receive under §26.17.
Transfer Restrictions
26.20 The Class B Shares may not be Transferred to any Person other than to BIP or a Person Controlled by BIP. If any Class B Shares are Transferred in
contravention of the preceding sentence, (i) such Transfer shall be null and void, and the Company shall not register or otherwise recognize the Transfer of the Class B Shares to the transferee, (ii) any rights to vote attaching to the Class B
Shares so Transferred may not be exercised by any Person, (iii) any payment by the Company on the Class B Shares so Transferred shall be prohibited and any such payment shall be forfeited, and (iv) any rights that an ineligible transferee may have
as a result of being a holder of Class B Shares shall be null and void, in each case, until such time as such Transfer is cancelled.
PART 27
SPECIAL RIGHTS AND RESTRICTIONS
CLASS C NON-VOTING SHARES
Special Rights and Restrictions
27.1 The Class C Shares as a class shall have attached thereto the special
rights and restrictions specified in this Part 27.
Dividend Rights
27.2 Class C Shareholders shall be
entitled to receive, as and when declared by the board of directors, out of any assets of the Company legally available therefor, such dividends as may be declared from time to time by the board of directors. The Class C Shareholders shall not be
entitled to receive dividends (i) unless and until the Company has paid any Unpaid Dividends, and (ii) unless and until the Company has paid all of the Exchange Consideration owing to any Tendering Class A Shareholders who have submitted Notices of
Exchange before the date the board of directors declares a dividend on the Class C Shares. The record and payment dates for dividends on Class C Shares shall be such date that the board of directors shall designate for the payment of such
dividends.
Stock Dividends
27.3 In the event a dividend is declared and paid on the Class A Shares
consisting of Class A Shares, the board shall, subject to applicable Law, contemporaneously declare and pay on the Class C Shares an equivalent dividend on a per share basis consisting of Class C Shares.
Ranking of the Class C Shares
27.4 The Class C Shares shall, as to the payment of dividends and return of
capital in a Liquidation Event, rank junior to the Preferred Shares, the Class A Shares and the Class B Shares and senior over any other shares ranking junior to the Class C Shares with respect to priority in payment of dividends and return of
capital in the event of the liquidation, dissolution or winding-up of the Company.
Voting Rights
27.5 Except as otherwise expressly provided
herein or as required by Law, each Class C Shareholder shall be entitled to notice of, and to attend, any meetings of shareholders of the Company, but shall not otherwise be entitled to vote at any such meeting.
Amendment with Approval of Class C Shareholders
27.6 In addition to any other approval required by Law, the
rights, privileges, restrictions and conditions attached to the Class C Shares as a class may be added to, changed or removed but only with the approval of the holders of the Class C Shares given as hereinafter specified.
27.7 The approval of the Class C Shareholders to add to, change or remove any right, privilege, restriction or condition attaching to the Class C Shares
as a class or in respect of any other matter requiring the consent of the Class C Shareholders may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be given by resolution signed by all the
Class C Shareholders or passed by the affirmative vote of at least two thirds of the votes cast at a meeting of the Class C Shareholders duly called for that purpose. On every poll taken at every meeting of the Class C Shareholders as a class, each
Class C Shareholder entitled to vote thereat shall have one vote in respect of each Class C Share held.
Retraction at the Option of the Class C Shareholder
27.8 Subject to applicable Law, at any time from and after the date of the issuance of the Class C Shares, each Class C Shareholder shall have the right (the "Class C Retraction
Right") to require the Company to redeem all or such portion of the Class C Shares registered in the name of such Class C Shareholder specified in an Notice of Class C Retraction delivered to the Company by or on behalf of such Class C
Shareholder (such Class C Shares being hereafter referred to as "Tendered Class C Shares" and such Class C Shareholder, the "Tendering Class C Shareholder") for the Cash Amount (the "Class C Retraction Amount").
Notice of Class C Retraction
27.9 A Class C Shareholder must deliver a Notice of Class C Retraction to the
registered office of the Company in order to exercise his, her or its Class C Retraction Right.
Satisfaction of Retraction Right
27.10 Upon receipt by Company of a Notice of Class C Retraction and such additional documents and instruments as the Company may reasonably require, the Company shall redeem the Tendered Class C
Shares on or prior to the Specified Class C Retraction Date. The Company will deliver or cause to be delivered to the Tendering Class C Shareholder, at the address of the holder recorded in the register of the Company for the Class C Shares or at
the address specified in the holder's Notice of Class C Retraction, the Class C Retraction Amount, and such delivery of such Class C Retraction Amount by or on behalf of the Company, will be deemed to be payment of and will satisfy and discharge all
liability for the Class C Retraction Right so exercised.
27.11 Each Tendering Class C Shareholder shall continue to own each Class C Share subject to any Notice of Class C Retraction, and be treated as a Class C
Shareholder with respect to each such Class C Share for all other purposes of these Articles, until such Class C Share has been redeemed by the Company in accordance with §27.8 to §27.13.
27.12 Notwithstanding anything to the contrary set forth herein, the Company will not be obligated to redeem Tendered Class C Shares to the extent that such redemption would be contrary to solvency
requirements or other provisions of applicable Law.
Withholding Taxes
27.13 Each Tendering Class C
Shareholder shall be required to pay to the Company the amount of any tax withholding due upon the redemption of Tendered Class C Shares pursuant to §27.8 to §27.10 and will be deemed to have authorized the Company to retain such portion
of the Class C Retraction Amount as the Company reasonably determines is necessary to satisfy its tax withholding obligations. Before making any tax withholding pursuant to this §27.13, the Company shall give each Tendering Class C Shareholder
within three (3) Business Days after the Company's receipt of a Notice of Class C Retraction from such Tendering Class C Shareholder, notice of the Company's good faith estimate of the amount of any anticipated tax withholding (together with the
legal basis therefor) due upon the redemption of the Tendered Class C Shares subject to such Notice of Class C Retraction, provide the Tendering Class C Shareholder with sufficient opportunity to provide any forms or other documentation or take such
other steps in order to avoid or reduce such tax withholding, and reasonably cooperate with the Tendering Class C Shareholder in good faith to attempt to reduce any amounts that would otherwise be withheld pursuant to this §27.13; provided that
any determination with respect to the tax withholding shall be made by the Company in its sole discretion exercised in good faith.
Liquidation Rights
27.14 Upon any Liquidation Event, including where substantially concurrent with a BIP Liquidation Event, the Class C Shareholders shall be entitled to receive on the Liquidation Date the assets and
property of the Company remaining, if any, after the prior payments of the amounts set forth in §27.15.
27.15 The rights of the Class C
Shareholders to receive the amounts set forth in §27.14 is subject to the prior payment of the amounts set forth in §25.26(b) and §25.26(c) and the prior rights of holders of all classes and series of Preferred Shares, Class A Shares,
Class B Shares and any other class of shares ranking in priority or rateably with the Class C Shares.
Transfer Restrictions
27.16 The Class C Shares may not be Transferred to any Person other than to BIP or a Person Controlled by BIP. If any Class C Shares are Transferred in contravention of the preceding sentence, (i)
such Transfer shall be null and void, and the Company shall not register or otherwise recognize the Transfer of the Class C Shares to the transferee, (ii) any payment by the Company on the Class C Shares so Transferred shall be prohibited and any
such payment shall be forfeited, and (iii) any rights that an ineligible transferee may have as a result of being a holder of Class C Shares shall be null and void, in each case, until such time as such Transfer is cancelled.
PART 28
SPECIAL
RIGHTS AND RESTRICTIONS
CLASS A SENIOR PREFERRED SHARES
Special Rights and Restrictions
28.1 Subject to the rights, if any, of the holders of issued shares of the Company, the Class A Senior Preferred Shares as a class shall have attached
thereto the special rights and restrictions specified in this Part 28.
Directors' Right to Issue in One or More Series
28.2 The Class A Senior Preferred Shares may be issued at any time or from time to time in one or more series. Before any Class A Senior Preferred Shares of a series are issued, the board of
directors shall, subject to the Business Corporations Act (British Columbia), by resolution:
(a) determine the maximum
number of shares of any of those series of shares that the Company is authorized to issue, determine that there is no maximum number or, if none of the shares of that series is issued, alter any determination so made, and authorize the alteration of
the notice of articles accordingly;
(b) alter the articles, and authorize the alteration of the notice of articles, to create an
identifying name by which the shares of any of those series of shares may be identified or, if none of the shares of that series is issued, to alter any such identifying name so created; and
(c) alter the articles, and authorize the alteration of the notice of articles accordingly, to attach special rights or restrictions to the shares of any of those series of shares, including,
but without in any way limiting or restricting the generality of the foregoing, the rate or amount of dividends, whether cumulative, non-cumulative or partially cumulative, the dates, places and currencies of payment thereof, the consideration for,
and the terms and conditions of, any purchase, retraction or redemption thereof, including redemption after a fixed term or at a premium, conversion or exchange rights, the terms and conditions of any share purchase plan or sinking fund, the
restrictions respecting payment of dividends on, or the repayment of capital in respect of, any other shares of the Company and voting rights and restrictions but no special right or restriction so created, defined or attached shall contravene the
provisions of §28.3 and §28.4, or, if none of the shares of that series is issued, to alter any such special rights or restrictions.
Ranking of the Class A Senior Preferred Shares
28.3 The Class A Senior Preferred Shares of each series shall, as to the payment of dividends and return of capital in a Liquidation Event, rank on a
parity with the Class A Senior Preferred Shares of every other series and senior to the Class B Junior Preferred Shares, the Class A Shares, the Class B Shares and the Class C Shares and over any other shares ranking junior to the Preferred Shares
with respect to priority in payment of dividends and return of capital in a Liquidation Event.
Voting
28.4 Except as hereinafter referred to or as required
by Law or unless provision is made in the articles of the Company relating to any series of Class A Senior Preferred Shares that such series is entitled to vote, the holders of the Class A Senior Preferred Shares as a class shall not be entitled as
such to receive notice of, to attend or to vote at any meeting of the shareholders of the Company.
Amendment with Approval of Holder of Class A Senior Preferred Shares
28.5 In addition to any other approval required by Law, the rights, privileges, restrictions and conditions attached to the Class A Senior Preferred
Shares as a class may be added to, changed or removed but only with the approval of the holders of the Class A Senior Preferred Shares given as hereinafter specified.
28.6 The approval of the holders of the Class A Senior Preferred Shares to add to, change or remove any right, privilege, restriction or condition attaching to the Class A Senior Preferred Shares
as a class or in respect of any other matter requiring the consent of the holders of the Class A Senior Preferred Shares may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be given by
resolution signed by all the holders of the Class A Senior Preferred Shares or passed by the affirmative vote of at least two thirds of the votes cast at a meeting of the holders of the Class A Senior Preferred Shares duly called for that purpose.
On every poll taken at every meeting of the holders of the Class A Senior Preferred Shares as a class, or at any joint meeting of the holders of two or more series of Class A Senior Preferred Shares, each holder of Class A Senior Preferred Shares
entitled to vote thereat shall have one vote in respect of each Class A Senior Preferred Share held.
PART 29
SPECIAL RIGHTS AND RESTRICTIONS
CLASS B JUNIOR PREFERRED SHARES
Special Rights and Restrictions
29.1 Subject to the rights, if any, of the holders of issued shares of the
Company, the Class B Junior Preferred Shares as a class shall have attached thereto the special rights and restrictions specified in this Part 29.
Directors' Right to Issue in One or More Series
29.2 The Class B Junior Preferred Shares may be issued at any time or from time to time in one or more series. Before any Class B Junior Preferred Shares
of a series are issued, the board of directors shall, subject to the Business Corporations Act (British Columbia), by resolution:
(a) determine the maximum number of shares of any of those series of shares that the Company is authorized to issue, determine that
there is no maximum number or, if none of the shares of that series is issued, alter any determination so made, and authorize the alteration of the notice of articles accordingly;
(b) alter the articles, and authorize the alteration of the notice of articles, to create an identifying name by which the shares of any of those series of shares may be identified or, if none
of the shares of that series is issued, to alter any such identifying name so created; and
(c) alter the articles, and authorize
the alteration of the notice of articles accordingly, to attach special rights or restrictions to the shares of any of those series of shares, including, but without in any way limiting or restricting the generality of the foregoing, the rate or
amount of dividends, whether cumulative, non-cumulative or partially cumulative, the dates, places and currencies of payment thereof, the consideration for, and the terms and conditions of, any purchase, retraction or redemption thereof, including
redemption after a fixed term or at a premium, conversion or exchange rights, the terms and conditions of any share purchase plan or sinking fund, the restrictions respecting payment of dividends on, or the repayment of capital in respect of, any
other shares of the Company and voting rights and restrictions but no special right or restriction so created, defined or attached shall contravene the provisions of §29.3 and §29.4, or, if none of the shares of that series is issued, to
alter any such special rights or restrictions.
Ranking of the Class B Junior Preferred Shares
29.3 The
Class B Junior Preferred Shares of each series shall, as to the payment of dividends and return of capital in a Liquidation Event, rank on a parity with the Class B Junior Preferred Shares of every other series, junior to the Class A Senior
Preferred Shares and senior to the Class A Shares, the Class B Shares and the Class C Shares and over any other shares ranking junior to the Preferred Shares with respect to priority in payment of dividends and in return of capital in a Liquidation
Event.
Voting
29.4 Except as hereinafter referred to or as required by Law or unless provision is made in
the articles of the Company relating to any series of Class B Junior Preferred Shares that such series is entitled to vote, the holders of the Class B Junior Preferred Shares as a class shall not be entitled as such to receive notice of, to attend
or to vote at any meeting of the shareholders of the Company.
Amendment with Approval of Holder of Class B Junior Preferred Shares
29.5 In addition to any other approval required by Law, the rights, privileges, restrictions and conditions attached to the Class B Junior Preferred Shares as a class may be added to, changed or
removed but only with the approval of the holders of the Class B Junior Preferred Shares given as hereinafter specified.
29.6 The approval of the
holders of the Class B Junior Preferred Shares to add to, change or remove any right, privilege, restriction or condition attaching to the Class
B Junior Preferred Shares as a class or in respect
of any other matter requiring the consent of the holders of the Class B Junior Preferred Shares may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be given by resolution signed by all the
holders of the Class B Junior Preferred Shares or passed by the affirmative vote of at least two thirds of the votes cast at a meeting of the holders of the Class B Junior Preferred Shares duly called for that purpose. On every poll taken at every
meeting of the holders of the Class B Junior Preferred Shares as a class, or at any joint meeting of the holders of two or more series of Class B Junior Preferred Shares, each holder of Class B Junior Preferred Shares entitled to vote thereat shall
have one vote in respect of each Class B Junior Preferred Share held.
EXHIBIT “A”
Notice of Exchange
NOTICE OF EXCHANGE
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To:
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Computershare Trust Company of Canada (the “Transfer Agent”)
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PLEASE DELIVER YOUR EXCHANGE REQUEST BY ONE OF THE OPTIONS BELOW:
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Via PDF Email (recommended)*:
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Via Mail:
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onlinedeposits@computershare.com
*You can either scan this document via PDF or take a picture with your phone (send a CLEAR picture of all pages, both front and back within the same email)
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Computershare Trust Company of Canada
P.O. Box 7021
31 Adelaide St E
Toronto, ON M5C 3H2
Attn: Corporate Actions
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This notice is given pursuant to Section 26.12 of the articles (the “Articles”) of Brookfield
Infrastructure Corporation (the “Company”). All capitalized words and expressions used in this notice that are defined in the Articles have the meanings ascribed to such words and expressions in the Articles.
The undersigned hereby notifies the Company that the undersigned desires to have the Company redeem in accordance with the Articles:
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all Class A Share(s) registered in the name of the undersigned; or
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_____ Class A Share(s) registered in the name of the undersigned.
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The undersigned acknowledges the Exchange-Redemption Call Right of Brookfield Infrastructure Partners L.P. (“BIP”) or an affiliate of BIP to
acquire all, but not less than all, of the Tendered Class A Shares from the undersigned and that this notice is and will be deemed to be an offer by the undersigned to sell the Tendered Class A Shares to BIP in accordance with the
Exchange-Redemption Call Right on or prior to the Specified Exchange Date for the Exchange Consideration and on the other terms and conditions set out in the Articles.
The undersigned acknowledges that the Company will not be obligated to redeem Tendered Class A Shares to the extent that such redemption would be
contrary to solvency requirements or other provisions of applicable Law. If the Company believes that it would not be permitted by any such requirements or other provisions to redeem the Tendered Class A Shares, provided that BIP has not
exercised its Exchange-Redemption Call Right with respect to the Tendered Class A Shares, the Company will only be obligated to redeem the maximum number of Tendered Class A Shares (rounded down to a whole number of Class A Shares)
that would not be contrary to such provisions.
The undersigned hereby represents and warrants to the Company and BIP that the undersigned has good title
to, and owns, the Class A Share(s) to be acquired by the Company, BIP or an affiliate of BIP as the case may be, free and clear of all liens, claims and encumbrances whatsoever.
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(Date)
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(Signature of Tendering
Class A Shareholder)
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(Guarantee of
Signature)
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CURRENCY ELECTION
(only if exchange or acquisition of the Tendered Class A Shares is satisfied by the Cash Amount)
Shareholders domiciled in Canada will receive the Cash Amount in Canadian
dollars (CAD) and shareholders domiciled in the United States and all other countries will receive the Cash Amount in U.S. dollars (USD), unless otherwise elected below;
☐ Issue my cash entitlement payment(s) in U.S. dollars (USD).
☐ Issue my cash
entitlement payment(s) in Canadian dollars (CAD).
☐ Issue my cash entitlement payment(s) in Australian dollars (AUD).
By electing to receive payment in another currency, the undersigned acknowledges that
(a) the exchange rate used will be the rate established by Computershare, in its capacity as foreign exchange service provider to the Company, on the date the funds are converted; (b) the risk of any fluctuation in such rate will be borne
by the undersigned; and (c) Computershare may earn commercially reasonable spread between its exchange rate and the rate used by any counterparty from which it purchases the elected currency.
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Payment Delivery Instruction
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☐ Please check this box if the Cash Amount, if applicable, resulting from the exchange or
acquisition of the Tendered Class A Shares is to be paid by cheque and mailed to the last address of the Tendering Class A Shareholder as it appears on the register of the Company or as instructed below in Exhibit A. ALL CHEQUE
PAYMENTS WILL BE ISSUED TO THE REGISTERED NAME AS IT CURRENTLY APPEARS.
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☐ Please check this box if the Cash Amount, if applicable, resulting from the exchange or
acquisition of the Tendered Class A Shares is to be paid by cheque and held for pick-up by the Tendering Class A Shareholder at the principal transfer office of the Transfer Agent in Toronto,
Ontario.
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☐ Please check this box if the Cash Amount, if applicable, resulting from the exchange or
acquisition of the Tendered Class A Shares is to be paid electronically to the Tendering Class A Shareholder using the electronic payment information as it appears on the dividend register of the Company or as instructed below in Exhibit
B.
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NOTE:
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This panel must be completed and such additional documents as the Transfer Agent may require must be deposited
with the Transfer Agent at its principal transfer office in Toronto, Ontario. The BIP Units Amount and any payment resulting from the exchange or acquisition of the Tendered Class A Shares will be issued and registered in, and made payable to
respectively, the name of the Tendering Class A Shareholder as it appears on the register of the Company and the BIP Units Amount and payment resulting from such exchange or acquisition will be delivered to such Tendering Class A
Shareholder as indicated above, unless the form appearing immediately below is duly completed.
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EXHIBIT A:
Cheque Delivery Information
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Date:
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Name of
Person in Whose Name Payment is to be Delivered
(please print)
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Street
Address or P.O. Box
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City,
Province and Postal Code
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Signature of
Tendering Class A Shareholder
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EXHIBIT B
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BROOKFIELD INFRASTRUCTURE CORPORATION
EXCHANGE WIRE PAYMENT FORM*
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**Beneficiary Name(s) that appears on the account at your financial institution – this MUST be the same name and address
that your shares are registered to
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**Beneficiary Address (Note: PO Boxes will not be accepted)
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**City
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**Province/State
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**Postal Code/Zip Code
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**Beneficiary Bank/Financial Institution
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**Bank Address
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**City
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**Province/State
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**Postal Code/Zip Code
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PLEASE ONLY COMPLETE THE APPLICABLE BOXES BELOW, AS PROVIDED BY YOUR FINANCIAL INSTITUTION. YOU ARE NOT REQUIRED TO COMPLETE ALL BOXES
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**Bank Account No.
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Bank No. & Transit No. (Canadian Banks)
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ABA/Routing No. (US Banks)
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(3 digits & 5 digits)
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(9 digits)
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SWIFT or BIC Code
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IBAN Number
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Sort Code (GBP)
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(11 characters – if you only have eight, put ‘XXX’ for the last three)
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Additional Notes and special routing instructions:
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*PLEASE NOTE THAT THERE IS A $100 BANKING FEE ON WIRE PAYMENTS. ALTERNATIVELY, CHEQUE PAYMENTS ARE
ISSUED AT NO ADDITIONAL COST. IF WIRE DETAILS ARE INCORRECT OR INCOMPLETE, COMPUTERSHARE WILL ATTEMPT TO CONTACT YOU AND CORRECT THE ISSUE. HOWEVER, IF WE CANNOT CORRECT THE ISSUE PROMPTLY, A CHEQUE WILL BE AUTOMATICALLY ISSUED AND MAILED TO THE
ADDRESS ON RECORD. NO FEES WILL BE CHARGED
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**MANDATORY FIELD
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Please provide email address and phone number in the event that we need to contact you for corrective
measures:
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EMAIL ADDRESS: _____________________________________________ PHONE NUMBER:
________________
EXHIBIT “B”
Notice of Class A Redemption
NOTICE OF CLASS A REDEMPTION
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To:
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Class A Shareholders of Brookfield Infrastructure Corporation (the “Company”)
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This notice is given pursuant to Section 26.19 of the articles of the Company (the “Articles”). All capitalized
words and expressions used in this notice that are defined in the Articles have the meanings ascribed to such words and expressions in such Articles.
The
Company hereby notifies the Class A Shareholders that the Company desires to redeem all of the issued and outstanding Class A Shares in accordance with the Articles.
The Company acknowledges that this notice is and will be deemed to be an irrevocable offer by the Company to redeem all of the Class A Shares on the
Specified Class A Redemption Date for the Redemption Consideration and on the other terms and conditions set out in the Articles.
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Brookfield Infrastructure Corporation
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(Date)
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EXHIBIT “C”
Notice of Class B Retraction
NOTICE OF CLASS B RETRACTION
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To:
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Brookfield Infrastructure Corporation (the “Company”)
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This notice is given pursuant to Section 26.12 of the articles of the Company (the “Articles”). All capitalized words and expressions
used in this notice that are defined in the Articles have the meanings ascribed to such words and expressions in such Articles.
The undersigned hereby
notifies the Company that the undersigned desires to have the Company redeem in accordance with the Articles:
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all Class B Share(s) registered in the name of the undersigned; or
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______ Class B Share(s) registered in the name of the undersigned.
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The undersigned acknowledges that this notice is and will be deemed to be an irrevocable offer by the undersigned to sell the Tendered Class B Shares to
the Company on or prior to the Specified Class B Retraction Date for the Class B Retraction Amount and on the other terms and conditions set out in the Articles.
The undersigned acknowledges that the Company will not be obligated to redeem Tendered Class B Shares to the extent that such redemption would be
contrary to solvency requirements or other provisions of applicable Law. If the Company believes that it would not be permitted by any such requirements or other provisions to redeem the Tendered Class B Shares, the Company will only be
obligated to redeem the maximum number of Tendered Class B Shares (rounded down to a whole number of Class B Shares) that would not be contrary to such provisions.
The undersigned hereby represents and warrants to the Company that the undersigned has good title to, and owns, the Class B Share(s) to be acquired by
the Company, free and clear of all liens, claims and encumbrances whatsoever.
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(Date)
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(Signature of Tendering Class B Shareholder)
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(Guarantee of Signature)
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☐ Please check this box if the Cash Amount resulting from the acquisition of the Tendered
Class B Shares is to be mailed to the last address of the Tendering Class B Shareholder as it appears on the register of the Company.
NOTE: This panel must be completed and this certificate, together with such additional documents as
the Company may require, must be delivered to the registered office of the Company in Vancouver, British Columbia. Any payment resulting from the acquisition of the Tendered Class B Shares will be made payable to the name of the Tendering
Class B Shareholder as it appears on the register of the Company and payment resulting from such acquisition will be delivered to such Tendering Class B Shareholder as indicated above, unless the form appearing immediately below is duly
completed.
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Name of Person in Whose Name Payment is to be Delivered (please print)
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Street Address or P.O. Box
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City, Province and Postal Code
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Signature of Tendering Class B Shareholder
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NOTE: If this Notice of Class B Retraction is for less than all of the Class B Share(s) represented by this
certificate, a certificate representing the remaining Class B Shares of the Company will be issued and registered in the name of the Tendering Class B Shareholder as it appears on the register of the Company.
EXHIBIT “D”
Notice of Class C Retraction
NOTICE OF CLASS C RETRACTION
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To:
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Brookfield Infrastructure Corporation (the “Company”)
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This notice is given pursuant to Section 27.9 of the articles of the Company (the “Articles”). All capitalized words and expressions
used in this notice that are defined in the Articles have the meanings ascribed to such words and expressions in such Articles.
The undersigned hereby
notifies the Company that the undersigned desires to have the Company redeem in accordance with the Articles:
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all Class C Share(s) registered in the name of the undersigned; or
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______ Class C Share(s) registered in the name of the undersigned.
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The undersigned acknowledges that this notice is and will be deemed to be an irrevocable offer by the undersigned to sell the Tendered Class C Shares to
the Company on or prior to the Specified Class C Retraction Date for the Class C Retraction Amount and on the other terms and conditions set out in the Articles.
The undersigned acknowledges that the Company will not be obligated to redeem Tendered Class C Shares to the extent that such redemption would be
contrary to solvency requirements or other provisions of applicable Law. If the Company believes that it would not be permitted by any such requirements or other provisions to redeem the Tendered Class C Shares, the Company will only be
obligated to redeem the maximum number of Tendered Class C Shares (rounded down to a whole number of Class C Shares) that would not be contrary to such provisions.
The undersigned hereby represents and warrants to the Company that the undersigned has good title to, and owns, the Class C Share(s) to be acquired by
the Company, free and clear of all liens, claims and encumbrances whatsoever.
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(Date)
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(Signature of Tendering Class C Shareholder)
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(Guarantee of Signature)
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☐ Please check this box if the Cash Amount resulting from the acquisition of the Tendered
Class C Shares is to be mailed to the last address of the Tendering Class C Shareholder as it appears on the register of the Company.
NOTE: This panel must be completed and this certificate, together with such additional documents as
the Company may require, must be delivered to the registered office of the Company in Vancouver, British Columbia. Any payment resulting from the acquisition of the Tendered Class C Shares will be made payable to the name of the Tendering
Class C Shareholder as it appears on the register of the Company and payment resulting from such acquisition will be delivered to such Tendering Class C Shareholder as indicated above, unless the form appearing immediately below is duly
completed.
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Name of Person in Whose Name Payment is to be Delivered (please print)
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Street Address or P.O. Box
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City, Province and Postal Code
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Signature of Tendering Class C Shareholder
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NOTE: If this Notice of Class C Retraction is for less than all of the Class C Share(s) represented by this
certificate, a certificate representing the remaining Class C Shares of the Company will be issued and registered in the name of the Tendering Class C Shareholder as it appears on the register of the Company.
BROOKFIELD ASSET MANAGEMENT INC.
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
Rights Agent
RIGHTS AGREEMENT
Dated as of March 31, 2020
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TABLE OF CONTENTS
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Page
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Section 1. Certain Definitions.
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2
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Section 2. Appointment of Rights Agent.
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5
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Section 3. Secondary Exchange Rights.
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5
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Section 4. Satisfaction of Secondary Exchange Rights.
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6
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Section 5. Exercise of Rights.
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9
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Section 6. Confirmation Procedures.
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9
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Section 7. BIP Units Record Date.
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11
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Section 8. Collateral Account.
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11
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Section 9. Registration of BIP Unit Resales.
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14
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Section 10. Concerning BAM.
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14
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Section 11. Rights of Action.
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16
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Section 12. Concerning the Rights Agent.
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16
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Section 13. Merger or Consolidation or Change of Name of Rights Agent.
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Section 14. Duties of Rights Agent.
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17
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Section 15. Change of Rights Agent.
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20
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Section 16. Notices.
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21
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Section 17. Supplements and Amendments.
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22
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Section 18. Successors.
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22
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Section 19. Benefits of this Agreement.
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22
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Section 20. Severability.
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22
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Section 21. Governing Law; Forum Selection.
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23
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Section 22. Counterparts.
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23
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Section 23. Descriptive Headings.
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23
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Section 24. Administration; Termination.
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23
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Section 25. No Waiver; Cumulative Rights.
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24
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Section 26. Fractional Units.
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24
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Section 27. Book Entry.
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24
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- i -
RIGHTS AGREEMENT
This Rights Agreement (this "Agreement") is dated as of March 31, 2020 between Brookfield Asset Management Inc., a
corporation organized under the laws of Ontario, Canada ("BAM"), and Wilmington Trust, National Association (the "Rights Agent").
WHEREAS, Brookfield Infrastructure Partners L.P.
("BIP") has agreed to distribute class A exchangeable subordinate voting shares (the "Class A Shares") of Brookfield Infrastructure Corporation (the "Company," and together with BIP, "our group") to the holders of BIP
Units pursuant to a special distribution (the "Special Distribution"), and additionally to BAM and its subsidiaries (other than entities within our group), and in connection therewith, certain Affiliates of BAM will become service providers
to the Company and certain of the Company's Affiliates pursuant to an amendment to the amended and restated master services agreement dated March 13, 2015 among BAM, BIP and others (the "Master Services Agreement"), which amendment will be
effective as of the distribution date for the Special Distribution (the "Distribution Date");
WHEREAS, pursuant to the terms of the Company's Articles, each Class A Shareholder will have
the right (the "Exchange Right") to require the Company to exchange all or a portion of the Class A Shares held by such Class A Shareholder (such Class A Shares being hereafter referred to as "Subject Class A Shares" and such
exchanging Class A Shareholder, the "Exchanging Class A Shareholder") for the BIP Units Amount or the Cash Amount in accordance with the terms and conditions of the Company's Articles;
WHEREAS, BIP may, in its sole and absolute discretion (including by means of a standing resolution adopted by the board of directors of the general partner of BIP, which may be amended or withdrawn
at any time) elect to satisfy the Company's Exchange Right obligation and acquire the Subject Class A Shares from such Exchanging Class A Shareholder in exchange for the BIP Units Amount or the Cash Amount, in accordance with the terms and
conditions of the Company's Articles;
WHEREAS, BAM is willing to provide for the delivery of the BIP Units Amount or, in its sole election, the Cash Amount to satisfy the Class A Shareholders'
Secondary Exchange Right in the event that, in connection with any Subject Class A Shares, (i) the Company has not satisfied its Exchange Right obligation under the Company's Articles by delivering the BIP Units Amount or Cash Amount on the
Specified Exchange Date (as hereinafter defined) and (ii) BIP has not, upon its election in its sole and absolute discretion, acquired such Subject Class A Shares from the Exchanging Class A Shareholder in exchange for the delivery of the BIP Units
Amount or the Cash Amount pursuant to the Company's Articles on the Specified Exchange Date;
WHEREAS, the Rights Agent desires to serve as agent for the Class A Shareholders with respect to the
administration of the Secondary Exchange Rights (as hereinafter defined); and
WHEREAS, BAM and the Rights Agent desire to set forth their rights and obligations with respect to the Secondary
Exchange Rights and the delivery of the BIP Units Amount or, at BAM's sole election, the Cash Amount in satisfaction of the Secondary Exchange Rights.
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions.
For purposes of this
Agreement, the following terms have the meanings indicated:
"Affiliate" shall have the meaning ascribed thereto in Rule 12b-2 of the General Rules and Regulations under the Exchange Act,
as in effect on the date of this Agreement, including, for the avoidance of doubt, any future Affiliates.
"Agreement" shall have the meaning set forth in the recitals.
"Applicable Procedures" means, with respect to any transfer of securities that are held through DTC or another Depositary, the rules and procedures of DTC or such other Depositary, as
applicable, that apply to such transfer or exchange.
"BAM" shall have the meaning set forth in the recitals.
"BIP" shall have
the meaning set forth in the recitals.
"BIP Unit" shall mean a limited partnership interest in BIP representing a fractional part of all the limited partner interests in BIP as
outstanding on the date hereof (or any other class of equity security of BIP into which the limited partnership interests in BIP may be converted after the date hereof), which is designated as a "Unit", and shall include any limited
partnership interest or other equity interest of BIP or any successor to BIP into which such BIP Unit is converted or for which such Unit is exchanged.
"BIP Unit Convertible" shall mean
any security, other than the Class A Shares, convertible into or redeemable for BIP Unit(s), provided such conversion or redemption right is freely and immediately exercisable by the holder thereof at any time, including, for the avoidance of doubt
and without limitation, redemption-exchange units of Brookfield Infrastructure L.P.
"BIP Unit Release Price" shall mean, as of the date of withdrawal of any BIP Unit or BIP Unit
Convertible from the Collateral Account, an amount in cash or Cash Equivalents equal to one hundred and fifty percent (150%) of the BIP Unit Value of such BIP Units or the BIP Unit Value of the number of BIP Units into which such BIP Unit
Convertible may be converted or redeemed for, as of such date.
"BIP Unit Value" shall have the meaning as provided in the Company's Articles.
"BIP Units Amount" shall have the meaning as provided in the Company's Articles.
"Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in New York, New York are authorized or obligated by law or executive order to close.
"Cash Amount" shall have the meaning as
provided in the Company's Articles.
"Cash Equivalents" shall mean (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (ii) readily marketable direct obligations issued by any state of the
United States or any political subdivision of any such state maturing within one year from the date of acquisition thereof and having one of the two highest ratings obtainable from either S&P or Moody's, (iii) dollar denominated time deposits,
certificates of deposit and bankers acceptances of any commercial bank having, or which is the principal banking subsidiary of a bank holding company having, a combined capital and surplus of at least $1,000,000,000 with maturities of not more than
one year from the date of acquisition, (iv) repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in
clause (iii) above, and (v) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (v) above.
"Class A Shareholder" shall mean any holder of at least one Class A
Share.
"Class A Shares" shall have the meaning set forth in the recitals.
"Close of Business" on any given date shall mean
5:00 P.M., New York City time, on such date; provided, however, that if such date is not a Business Day it shall mean 5:00 P.M., New York City time, on the next succeeding Business Day.
"Collateral Account" shall have the meaning as provided in Section 8.
"Collateral Account Balance" shall mean the
aggregate of the Collateral Account BIP Unit Balance and the Collateral Account Cash Balance.
"Collateral Account BIP Unit Balance" shall mean, as of any date, (i) the number of BIP Units
in the Collateral Account plus (ii) the number of BIP Units issuable upon conversion or redemption of BIP Unit Convertibles in the Collateral Account as of such date.
"Collateral Account Cash
Balance" shall mean, as of any date, a number of BIP Units (rounded down to the nearest whole unit) equal to the quotient of (i) the aggregate amount of cash and Cash Equivalents in the Collateral Account divided by (ii) the BIP Unit Value as of
such date; provided that for purposes of Section 8(d) and Section 8(e), the Collateral Account Cash Balance shall equal the aggregate amount of cash and Cash Equivalents in the Collateral Account as of such date.
"Company" shall have the meaning set forth in the recitals.
"Company Notice" shall mean a written notice in substantially the
form attached hereto as Exhibit D-1 delivered by the Company to the Rights Agent, BIP and BAM, with respect to any Subject Class A Share, stating that (i) the Company has not satisfied its obligation under sections 25.11 and 25.13 of the
Company's Articles with respect to such Subject Class A Share by delivering the Cash Amount or BIP Units Amount on the applicable Specified Exchange Date and (ii) BIP has not, upon its election in its sole and absolute discretion, acquired such
Subject Class A Share from the Exchanging Class A Shareholder and delivered the BIP Units Amount or Cash Amount in exchange therefor pursuant to section 25.23 of the Company's Articles on the Specified Exchange Date.
"Company's Articles" shall mean the
Articles of Incorporation of the Company substantially in the form attached hereto as Exhibit A, as amended from time to time following the Distribution Date in accordance with its terms.
"Conversion Factor" shall have the meaning as provided in the Company's Articles.
"Depositary" means a clearing agency registered
under the Exchange Act.
"Distribution Date" shall have the meaning set forth in the recitals, and BAM shall notify the Rights Agent in writing immediately following the determination of
such date.
"DTC" means The Depository Trust Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Right" shall have the meaning set forth in the recitals.
"Exchanging Class A Shareholder" shall have the
meaning set forth in the recitals.
"Exchanging Class A Shareholder Notice" shall mean a written notice in substantially the form attached hereto as Exhibit D-2 delivered by a Class
A Shareholder to the Rights Agent and BAM and containing a medallion guarantee, with respect to any Subject Class A Share, that (i) the Company has not satisfied its obligation under sections 25.11 and 25.13 of the Company's Articles by delivering
the BIP Units Amount or Cash Amount on the applicable Specified Exchange Date and (ii) BIP has not, upon its election in its sole and absolute discretion, acquired such Subject Class A Share from the Exchanging Class A Shareholder and delivered the
BIP Units Amount or Cash Amount in exchange therefor pursuant to section 25.23 of the Company's Articles on the applicable Specified Exchange Date.
"Final Expiration Date" shall mean the
fifth anniversary of the Distribution Date.
"Participant" means, with respect to a Depositary, a Person who has an account with the Depositary.
"Person" shall mean any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business trust, limited liability company, unincorporated association
or other entity, and shall include any successor (by merger or otherwise) of such entity.
"Received Class A Share Account" shall have the meaning as provided in Section 4(c).
"Registered BIP Unit" shall have the meaning set forth in Section 9.
"Required Collateral Account Balance" shall mean, as
of a particular date, a number of BIP Units equal to the product of (i) the total number of Class A Shares outstanding on such date, excluding Class A Shares owned by BAM or its Affiliates, multiplied by (ii) the Conversion Factor in effect on such
date.
"Required Collateral Account Cash Balance" shall mean, as of a particular date, the product of (i)(a) the Required Collateral Account Balance minus (b) the Collateral Account BIP Unit
Balance, multiplied by (ii) one hundred and twenty-five percent (125%) of the BIP Unit Value as of such date.
"Rights Agent" shall have the meaning set forth in the recitals.
"Secondary Exchange Right" shall have the meaning as provided in the Company's Articles.
"Securities Act" shall mean the
Securities Act of 1933, as amended.
"Specified Exchange Date" shall have the meaning as provided in the Company's Articles.
"Subject Class A Shares" shall have the meaning set forth in the recitals.
Section 2. Appointment of Rights Agent.
The Rights Agent is hereby appointed to act as agent for the holders of the
Secondary Exchange Rights, as a class and not individually, in accordance with the express terms and conditions hereof, and the Rights Agent hereby accepts such appointment. The obligations of the Rights Agent hereunder shall become effective as of
the Distribution Date. The Rights Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document (including, without limitation, the Company's Articles or the Class
A Shares) other than this Agreement, except to the extent that defined terms set forth in the Company's Articles are expressly incorporated herein, whether or not an original or a copy of such agreement, instrument, or document has been provided to
the Rights Agent; and the Rights Agent shall have no duty to know or inquire as to the performance or nonperformance of any provision of any such agreement, instrument, or document. Except to the extent that defined terms set forth in the Company's
Articles are expressly incorporated herein, references in this Agreement to any other agreement, instrument, or document are for the convenience of the parties and the Rights Agent has no duties or obligations with respect thereto.
Section 3. Secondary Exchange Rights.
(a) The Secondary Exchange Rights are a part of the terms of the Class A Shares and shall not be transferred or assigned separate or apart from the Class A Shares. The
Secondary Exchange Rights shall not be separately evidenced. Any sale, transfer, assignment or other disposition of a Class A Share shall also constitute the sale, transfer, assignment or other disposition of the Secondary Exchange Rights associated
with such Class A Share.
(b) Physical certificates for Class A Shares, if any, which become outstanding prior
to the Close of Business on the Final Expiration Date shall have impressed on, printed on, written on or otherwise affixed to them the following legend:
This certificate also
evidences and entitles the holder hereof to certain Secondary Exchange Rights as set forth in a Rights Agreement between Brookfield Asset Management Inc. and Wilmington Trust, National Association, as Rights Agent, dated as of March 31, 2020, as it
may from time to time be amended or supplemented pursuant to its terms (the "Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of the Company. The
Company will mail to the holder of this certificate a copy of the Agreement without charge after receipt of a written request therefor. The Secondary Exchange Rights are a part of the terms of the Class A Shares and shall not be transferred or
assigned separate or apart from the Class A Shares.
Notwithstanding this Section 3(b), the omission of a legend shall not affect the enforceability of any part of this Agreement or the rights of any holder of the Secondary Exchange Rights.
Section 4. Satisfaction of Secondary Exchange Rights.
(a) BAM hereby agrees to satisfy, or cause to be satisfied, the obligations with respect to the Secondary Exchange
Rights contained in the Company's Articles in accordance with the terms of this Agreement in the event that, in connection with any Subject Class A Share, (i) the Company has not satisfied its obligation under sections 25.11 and 25.13 of the
Company's Articles by delivering the BIP Units Amount or Cash Amount on the applicable Specified Exchange Date and (ii) BIP has not, upon its election in its sole and absolute discretion, acquired such Subject Class A Share from the Exchanging Class
A Shareholder and delivered the BIP Units Amount or Cash Amount in exchange therefor pursuant to section 25.23 of the Company's Articles on the applicable Specified Exchange Date.
(i) In accordance with the Company's Articles, the Company is required to deliver a Company Notice, which shall be executed by an authorized signatory identified in Exhibit
B-1 attached hereto (which exhibit may be updated by the Company from time to time in the Company's reasonable discretion, provided that such update does not adversely affect any Class A Shareholder or its rights hereunder in any respect), to
the Rights Agent and BAM on the Specified Exchange Date if the conditions to the exercise of the Secondary Exchange Rights set forth in the immediately preceding sentence with respect to such Subject Class A Shares have been satisfied, which Company
Notice shall set forth the BIP Units Amount and the Cash Amount for such Subject Class A Shares and any wire transfer or other delivery instructions necessary to permit the Rights Agent to transfer the BIP Units or the Cash Amount to the Exchanging
Class A Shareholder and be in a format that is acceptable to the Rights Agent (determined by the Rights Agent acting reasonably and in good faith). If the Rights Agent shall not have received a signed written notice executed by an authorized
signatory identified in Exhibit B-2 attached hereto from BAM (which exhibit may be updated by BAM from time to time in BAM's reasonable discretion, provided that such update does not adversely affect any Class A Shareholder or its rights
hereunder in any respect) by the Close of Business on the Business Day immediately following the date the Rights Agent received the Company Notice, providing that BAM has elected, in BAM's sole discretion, to fund the Cash Amount pursuant to
Section 4(b) below, the Rights Agent shall exchange (in accordance with Section 4(e) below) such Subject Class A Shares for a number of BIP Units held in the Collateral Account equal to the BIP Units Amount for such Subject Class A
Shares set forth in such Company Notice and promptly, and in any event within two Business Days following the receipt of the Company Notice and the Subject Class A Shares in the Received Class A Share Account pursuant to Section 4(c), deliver
such BIP Units from the Collateral Account to the Exchanging Class A Shareholder; provided that if there shall not be enough BIP Units in the Collateral Account to satisfy the BIP Units Amount with respect to one or more of such Subject Class
A Shares, the Rights Agent shall exchange each such Subject Class A Share for an amount of cash from the Collateral Account equal to the Cash Amount for such Subject Class A Share and promptly, and in any event within two Business Days of receipt of
the Company Notice and the Subject Class A Shares in the Received Class A Share Account pursuant to Section 4(c), deliver the Cash Amount to the Exchanging Class A Shareholder. For the avoidance of doubt, if for any given exercise of the
Secondary Exchange Rights under this Section 4 there are not enough BIP Units in the Collateral Account to satisfy the BIP Units Amount with respect to all Subject Class A Shares subject to such Secondary Exchange Right, the Rights Agent
shall not cause any BIP Units to be exchanged with respect to any such Subject Class A Shares, and shall instead only deliver to the Exchanging Class A Shareholder the Cash Amount with respect to each such Subject Class A Share from the Collateral
Account.
(ii) In the event that, in connection with any Subject Class A Share, (i) the Company has not satisfied its
obligation under sections 25.11 and 25.13 of the Company's Articles by delivering the BIP Units Amount or Cash Amount on the applicable Specified Exchange Date and (ii) BIP has not, upon its election in its sole and absolute discretion, acquired
such Subject Class A Share from the Exchanging Class A Shareholder and delivered the BIP Units Amount or Cash Amount in exchange therefor pursuant to section 25.23 of the Company's Articles on the applicable Specified Exchange Date, the Exchanging
Class A Shareholder shall have the right to deliver, or cause to be delivered, an original Exchanging Class A Shareholder Notice to the Rights Agent and BAM, which Exchanging Class A Shareholder Notice shall set forth the number of such Subject
Class A Shares and any wire transfer or other delivery instructions necessary to permit the Rights Agent to transfer the BIP Units Amount or the Cash Amount to the Exchanging Class A Shareholder and be in a format that is acceptable to the Rights
Agent (determined by the Rights Agent acting reasonably and in good faith). As promptly as practicable and in any event on or prior to the Business Day immediately following the date of such Exchanging Class A Shareholder Notice, BAM shall provide
written notice to the Rights Agent, which notice shall (i) set forth the BIP Units Amount and the Cash Amount for such Subject Class A Shares subject to such Exchanging Class A Shareholder Notice and (ii) either (A) provide that BAM has elected, in
BAM's sole discretion, to fund the Cash Amount pursuant to Section 4(b) below with respect to such Subject Class A Shares, or (B) instruct the Rights Agent to exchange (in accordance with Section 4(c), and 4(e) below) each
Subject Class A Share in accordance with this Section 4(a)(ii), it being understood that BAM shall not be obligated to deliver such notice to the Rights Agent if it has determined in good faith that the conditions to the exercise of the
Secondary Exchange Right set forth in Section 4(a) have not been satisfied. Upon receipt of an instruction by BAM pursuant to clause (ii)(B) of the immediately preceding sentence and receipt of an original Exchanging Class A Shareholder
Notice and the Subject Class A Shares in the Received Class A Share Account pursuant to Section 4(c), the Rights Agent shall exchange such Subject Class A Shares for a number of BIP Units held in the Collateral Account equal to the BIP Units
Amount for such Subject Class A Shares set forth in such BAM instructions and, on or prior to the second Business Day following receipt of such instruction from BAM and receipt of an original Exchanging Class A Shareholder Notice, and the Subject
Class A Shares in the Received Class A Share Account pursuant to Section 4(c), deliver such BIP Units from the Collateral Account to the Exchanging Class A Shareholder; provided that if there shall not be enough BIP Units in the
Collateral Account to satisfy the BIP Units Amount with respect to one of more of such Subject Class A Shares, the Rights Agent shall exchange each such Subject Class A Share for an amount of cash from the Collateral Account equal to the Cash Amount
for such Subject Class A Share and, on or prior to the second Business Day following receipt of such instruction from BAM and receipt of an original Exchanging Class A Shareholder Notice, and the Subject Class A Shares in the Received Class A Share
Account pursuant to Section 4(c), deliver the Cash Amount to the Exchanging Class A Shareholder. The Rights Agent shall not take any action under this Section 4(a)(ii) or otherwise upon receipt of an Exchanging Class A Shareholder
Notice unless BAM has instructed the Rights Agent to exchange any Subject Class A Share for a number of BIP Units or the Cash Amount, as applicable, as set forth in this Section 4(a)(ii).
(b) With respect to any Company Notice or Exchanging Class A Shareholder Notice, BAM shall have the right, in its sole and absolute discretion, to elect that the Rights Agent
exchange the Subject Class A Shares for the Cash Amount for each Subject Class A Share by providing written notice of such election to the Rights Agent on or prior to the Close of Business on the Business Day immediately following the date the
Rights Agent received the Company Notice or Exchanging Class A Shareholder Notice, as applicable, in accordance with Section 4(a)(i) and Section 4(a)(ii), as applicable. In the event that BAM shall make the election described in the immediately
preceding sentence and there shall not be an amount of cash in the Collateral Account sufficient to exchange any such Subject Class A Share for the Cash Amount, BAM shall deposit an amount of cash into the Collateral Account equal to the Cash Amount
with respect to each such Subject Class A Share simultaneously with the delivery of the written notice set forth in the immediately preceding sentence. In the event that BAM shall elect that the Rights Agent exchange the Subject Class A Shares for
the Cash Amount pursuant to this Section 4(b), the Rights Agent shall deliver the Cash Amount for each Subject Class A Share from the Collateral Account to the Exchanging Class A Shareholder on or before the second Business Day following
receipt of the written notice of such election from BAM and receipt of an original Exchanging Class A Shareholder Notice (only if applicable per Section 4(a)(ii)) and the Subject Class A Shares in the Received Class A Share Account pursuant
to Section 4(c).
(c) BAM shall establish a non-interest bearing trust account in the name of BAM that
will be administered by the Rights Agent for purposes of receiving any Subject Class A Shares exchanged pursuant to this Agreement (the "Received Class A Share Account"). Such Received Class A Share Account information is as set forth in
Exhibits D-1 and D-2. Any Class A Shares received by the Rights Agent pursuant to Section 4(a) or Section 4(b) shall be delivered to the Received Class A Share Account. Any Class A Shares in the Received Class A Share
Account shall be transferable to BAM or, at BAM's direction, an Affiliate of BAM which was the beneficial owner of the BIP Units transferred to the Exchanging Class A Shareholder, pursuant to delivery instructions provided by BAM to the Rights Agent
(which may be standing written instructions), and shall not be delivered into the Collateral Account, and thereafter BAM or such Affiliate, as applicable, shall be the beneficial owner of such Class A Shares with all rights, powers, privileges and
preferences appurtenant thereto, including, without limitation, the Exchange Right. Delivery to BAM or such Affiliate pursuant to this Section 4(c) shall be accomplished by the Rights Agent instructing the transfer agent for the Class A
Shares to record the transfer of the Class A Shares from the Received Class A Shares Account to, and the ownership thereof by, BAM or such Affiliate in accordance with the Applicable Procedures. The Rights Agent shall provide BAM with online access
to view the Received Class A Share Account, which online interface shall be kept reasonably up-to-date by the Rights Agent.
(d) Notwithstanding anything to the contrary contained in this Agreement, BAM shall be entitled to cause any of its
Affiliates to take any action required to satisfy BAM's obligations with respect to the Secondary Exchange Rights or otherwise pursuant to this Agreement; provided that nothing other than full and complete payment and performance of such obligations
shall relieve BAM of such obligations.
(e) In connection with an Exchanging Class A Shareholder's exercise of
the Secondary Exchange Right with respect to any Subject Class A Shares held through DTC or another Depositary, such Exchanging Class A Shareholder shall deliver to the Rights Agent such Subject Class A Shares to the Received Class A Share Account
pursuant to DTC's or such other Depositary's Applicable Procedures. In addition, such Exchanging Class A Shareholder shall deliver to the Rights Agent via email or other appropriate method of communication on the Business Day prior to the delivery
of such Subject Class A Shares, a copy of such Exchanging Class A Shareholder's Exchanging Class A Shareholder Notice; provided that the Rights Agent's obligations pursuant to Section 4(a)(ii) shall not be affected by such Exchanging Class A
Shareholder's failure to so deliver a copy of such Exchanging Class A Shareholder Notice if such Exchanging Class A Shareholder's original Exchanging Class A Shareholder Notice is received by the Rights Agent within two Business Days of the date
that the Rights Agent receives such Subject Class A Shares pursuant to DTC's or another Depositary's Applicable Procedures. In connection with any transfer by an Exchanging Class A Shareholder of any Subject Class A Shares required by this Agreement
which are not held through DTC or another Depositary, such Exchanging Class A Shareholder shall take all necessary action to cause such Subject Class A Shares to be delivered to the Received Class A Share Account.
Section 5. Exercise of Rights.
The Rights Agent shall
cause the BIP Units Amount delivered to any Exchanging Class A Shareholder pursuant to Section 4(a) to be delivered to or upon the order of the Exchanging Class A Shareholder, registered in such name or names as such Exchanging Class A
Shareholder held such Subject Class A Shares (all as set forth in the Company Notice or the Exchanging Class A Shareholder Notice, as applicable).
Section 6. Confirmation Procedures.
(a) If the BIP Units Amount or the Cash Amount to be delivered pursuant to Section 4 above is to be
delivered in a name other than that in which the Subject Class A Shares surrendered in exchange therefor are registered in the stock transfer books or ledger of the Company, the BIP Units Amount or the Cash Amount may be delivered to a Person other
than the Person in whose name the Subject Class A Shares so surrendered are registered in the stock transfer books or ledger of the Company only if such Subject Class A Shares are properly endorsed and otherwise in proper form for surrender and
transfer and the Person requesting such delivery has paid to BAM (or any agent designated by BAM) any transfer taxes reasonably expected to be required by reason of the payment of the BIP Units Amount or the Cash Amount to a Person other than the
registered holder of such Subject Class A Shares, or established to the reasonable satisfaction of BAM (or any agent designated by BAM) that such transfer taxes have been paid or are otherwise not payable. Upon satisfaction of the condition in the
immediately preceding sentence, BAM shall instruct the Rights Agent in writing to deliver such BIP Units Amount or Cash Amount to such other Person. Unless the Rights Agent has received such written instruction from BAM pursuant to the immediately
preceding sentence prior to the delivery by the Rights Agent of the BIP Units Amount or Cash Amount with respect to such Subject Class A Shares, the Rights Agent shall have no duty or obligation under this Section 6(a) and shall deliver or
cause to be delivered the BIP Units Amount or Cash Amount to the party designated in the Company Notice without further inquiry.
(b) All Subject Class A Shares shall be delivered to the Received Class A Share Account free and clear of all
liens, claims and encumbrances whatsoever, and should any such liens, claims and encumbrances exist or arise with respect to such Subject Class A Shares, the Exchanging Class A Shareholder shall not be entitled to exercise its Secondary Exchange
Rights with respect to such Subject Class A Shares. Each Exchanging Class A Shareholder will pay to BAM the amount of any tax withholding due upon the exchange of Subject Class A Shares pursuant to this Agreement and, in the event BAM elects to
acquire some or all of the Subject Class A Shares from the Exchanging Class A Shareholder in exchange for the Cash Amount in accordance with Section 4(b), will authorize BAM to retain such portion of the Cash Amount as BAM reasonably
determines is necessary to satisfy its tax withholding obligations. In the event BAM elects to acquire some or all of the Subject Class A Shares from the Exchanging Class A Shareholder in exchange for the BIP Units Amount, BAM may elect to either
satisfy the amount of any tax withholding due upon the exchange of Subject Class A Shares by retaining BIP Units with a fair market value, as reasonably determined by BAM in good faith, equal to the amount of such obligation, or satisfy such tax
withholding obligation using amounts paid by BAM, which amounts shall be treated as a loan by BAM to the Exchanging Class A Shareholder, in each case, unless the Exchanging Class A Shareholder, at the Exchanging Class A Shareholder's election, has
paid or has made arrangements satisfactory to BAM, in its sole discretion, to pay, the amount of any such tax withholding. BAM shall notify the Exchanging Class A Shareholder within one Business Day following the date of the Company Notice or the
Exchanging Class A Shareholder Notice, as applicable, of BAM's good faith estimate of the amount of any tax withholding due upon the exchange of the Subject Class A Shares subject to such Company Notice or the Exchanging Class A Shareholder Notice,
provide the Exchanging Class A Shareholder with sufficient opportunity to provide any forms or other documentation or take such other steps in order to avoid or reduce such withholding, and reasonably cooperate with the Exchanging Class A
Shareholder in good faith to attempt to reduce any amounts that would otherwise be withheld pursuant to this Section 6(b); provided that any determination with respect to the withholding shall be made by BAM, in its sole discretion exercised
in good faith. Notwithstanding anything to the contrary in this Section 6(b), in no event shall an Exchanging Class A Shareholder be subject to withholding both under section 25.18 of the Company's Articles and under this Section 6(b),
and any amounts paid or withheld with respect to a Subject Class A Share pursuant to section 25.18 of the Company's Articles shall be credited against and deemed to satisfy the Exchanging Class A Shareholder's withholding obligation pursuant to this
Section 6(b).
Section 7. BIP Units Record Date.
Each former Exchanging
Class A Shareholder who receives the BIP Units Amount upon the exercise of the Secondary Exchange Right with respect to any Subject Class A Share pursuant to this Agreement shall for all purposes be deemed to have become the owner of the BIP Units
representing the BIP Units Amount for which the Secondary Exchange Right with respect to such Subject Class A Share is exercisable as of the date upon which such Class A Shareholder's Subject Class A Share is duly surrendered in accordance with this
Agreement. Prior to such Class A Shareholder's surrender of such Subject Class A Share in accordance with this Agreement, the Class A Shareholder shall not be entitled to any rights of a holder of such BIP Units for which the Secondary Exchange
Right with respect to such Subject Class A Share shall be exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any
notice of any proceedings of BIP with respect to such BIP Units. For the avoidance of doubt, any Class A Shareholder who receives the Cash Amount in satisfaction of the Secondary Exchange Right with respect to any Class A Share pursuant to this
Agreement shall not be entitled to any rights of a holder of BIP Units at any time with respect to the BIP Units for which the Secondary Exchange Right with respect to such Subject Class A Share was exercisable prior to the receipt of such Cash
Amount.
Section 8. Collateral Account.
(a) BAM or one or more Affiliates of BAM shall establish one or more non-interest bearing trust accounts in the name of BAM or such Affiliates that will be administered by the
Rights Agent (together, the "Collateral Account"). The Rights Agent shall requisition the BIP Units Amount or the Cash Amount, as applicable, without any further action or approval from BAM, for payment to any Class A Shareholder in accordance with
Section 4(a) or Section 4(b) in accordance with the terms and conditions set forth in this Agreement. BAM shall be responsible for ensuring that the Collateral Account Balance shall at times equal or exceed the Required Collateral
Account Balance. Notwithstanding anything to the contrary contained in this Section 8 and subject to any additional requirements with respect to the Collateral Account Balance contained in this Section 8, in the event that the
Collateral Account Balance shall at any time be less than the Required Collateral Account Balance, including, without limitation, as a result of an adjustment to the Conversion Factor or an increase in the BIP Unit Value, within two Business Days,
BAM shall, or shall cause an Affiliate to, deposit into the Collateral Account either (i) a number of BIP Units or BIP Unit Convertibles or (ii) an amount of cash or Cash Equivalents, in an amount necessary to cause the Collateral Account Balance to
be at least equal to the Required Collateral Account Balance. The Rights Agent shall have no duty or obligation to calculate the Required Collateral Account Balance, determine the Conversion Factor, determine if the Collateral Account Balance equals
or exceeds the Required Collateral Account Balance, or determine the amounts necessary to cause the Collateral Account Balance to equal or exceed the Required Collateral Account Balance. BAM covenants and agrees that it will take all action within
its control (including making requests of third parties and enforcing any contractual rights and/or obligations) to convert or redeem any BIP Unit Convertibles if necessary to satisfy any Class A Shareholder's Secondary Exchange Right in accordance
with this Agreement, and any delivery of a BIP Units Amount pursuant to this Agreement shall be made in the form of BIP Units and not, for the avoidance of doubt, in the form of BIP Unit Convertibles. To the extent that conversion or redemption of a
BIP Unit Convertible results in the imposition of any fees, payments, premiums or penalties, such fees, payments, premiums or penalties shall be borne by BAM, or its applicable Affiliates, and shall either be satisfied directly by BAM or such
Affiliates or shall be deemed to reduce the Collateral Account Balance. BAM shall keep the Rights Agent informed of the Collateral Account Balance and the Required Collateral Account Balance in writing on a regular basis, and shall inform the Rights
Agent in writing within two Business Days of any change in the Collateral Account Balance or the Required Collateral Account Balance for any reason, including as a result of an adjustment to the Conversion Factor or an increase in the BIP Unit
Value.
(b) Prior to or substantially concurrently with the issuance of any Class A Shares by the Company, BAM shall, or cause an Affiliate of BAM to, deposit BIP Units or BIP Unit
Convertibles into the Collateral Account such that, after taking into account the number of BIP Units issued or issuable upon conversion or redemption of such BIP Unit Convertibles, the number of BIP Units deposited into the Collateral Account shall
be equal to the product of (i) the number of such Class A Shares issued (excluding any shares issued to BAM or its Affiliates) multiplied by (ii) the Conversion Factor. The Rights Agent shall have no duty or obligation to calculate the Conversion
Factor, to determine the number of Class A Shares issued, or to determine the number of BIP Units or BIP Unit Convertibles necessary to equal the product of (i) the number of such Class A Shares issued (excluding any shares issued to BAM or its
Affiliates) multiplied by (ii) the Conversion Factor.
(c) Except as set forth in this Section 8(c), BAM and its
Affiliates shall not be entitled to withdraw any BIP Unit or BIP Unit Convertible from the Collateral Account.
(i) In the event that the Collateral Account Balance shall exceed the Required Collateral Account Balance, either
as a result of a change in the Conversion Factor or a decrease in the number of Class A Shares (excluding Class A Shares owned by BAM or its Affiliates) outstanding, BAM or an Affiliate of BAM shall be entitled to withdraw (pursuant to a written
instruction from BAM to the Rights Agent) from the Collateral Account a number of BIP Units, or BIP Unit Convertibles that are convertible into or redeemable for a number of BIP Units, up to an amount equal to (i) the Collateral Account Balance
minus (ii) the Required Collateral Account Balance. The Rights Agent shall be entitled to conclusively and exclusively rely upon such written instruction from BAM in accordance with this Section 8(c)(i) without liability or further
inquiry.
(ii) BAM, or any Affiliate of BAM, shall be permitted to withdraw from the Collateral Account a BIP
Unit, or the number of BIP Unit Convertibles that are convertible into or redeemable for a BIP Unit, upon the deposit by BAM or any Affiliate of BAM of the BIP Unit Release Price with respect to such BIP Unit, or the number of BIP Unit Convertibles
that are convertible into or redeemable for such BIP Unit, in the Collateral Account.
(d) If at any time the
Collateral Account Cash Balance shall be less than the Required Collateral Account Cash Balance, BAM shall, or shall cause its Affiliates to, within two Business Days, deposit cash or Cash Equivalents (pursuant to a written instruction from BAM to
the Rights Agent and as selected by BAM) in an amount necessary to cause the Collateral Account Cash Balance to be at least equal to the Required Collateral Account Cash Balance.
(e) Except as set forth in this Section 8(e), BAM and its Affiliates shall not be entitled to withdraw any cash or
Cash Equivalents from the Collateral Account.
(i) If at any time the Collateral Account Cash Balance shall be
greater than one hundred and twenty percent (120%) of the Required Collateral Account Cash Balance, either as a result of a change in the Conversion Factor or a decrease in the number of Class A Shares (excluding Class A Shares owned by BAM or its
Affiliates) outstanding, BAM or its Affiliates shall be permitted to withdraw (pursuant to a written instruction from BAM to the Rights Agent) cash or Cash Equivalents in an amount not to exceed the excess of (i) the Collateral Account Cash Balance
minus (ii) one hundred and twenty percent (120%) of the Required Collateral Account Cash Balance. The Rights Agent shall be entitled to conclusively and exclusively rely upon such written instruction from BAM in accordance with this Section
8(e)(i) without liability or further inquiry.
(ii) Upon the deposit in the Collateral Account of a number
of BIP Units, or of BIP Unit Convertibles that are convertible into or redeemable for such number of BIP Units, BAM, or an Affiliate of BAM, shall be permitted to withdraw (pursuant to a written instruction from BAM to the Rights Agent) cash or Cash
Equivalents from the Collateral Account in an amount equal to the aggregate BIP Unit Value of such number of BIP Units, or of the number of BIP Units issuable upon the conversion or redemption of such BIP Unit Convertibles, as applicable.
(f) For the avoidance of doubt, BAM, or its applicable Affiliates, shall remain the beneficial owner of any BIP Units
or BIP Unit Convertibles deposited by BAM or such Affiliates into the Collateral Account for so long as such BIP Units or BIP Unit Convertibles remain in the Collateral Account, and shall hold all of the rights, powers, privileges and preferences
appurtenant to such BIP Units or BIP Unit Convertibles, including, without limitation, the right to distributions on such BIP Units or BIP Unit Convertibles. In the event that the Collateral Account consists of more than one account and (i) the
Rights Agent has not received written instructions from BAM as to which account to use for any specific transaction described in this Section 8 or (ii) there shall not be an amount within the account designated by BAM to satisfy any
applicable BIP Units Amount or Cash Amount to be delivered pursuant to this Agreement, in such cases the Rights Agent shall follow an order of account priority, to be provided in writing by BAM upon the establishment each new account, when
determining which account to use for any of the transactions described in this Section 8. BAM also covenants and agrees that it will take all action within its control to ensure that any transfer agent of the BIP Unit certificates and Class A
Shares will comply with the Rights Agent's instructions in carrying out the purposes of this Agreement. BAM shall provide the Rights Agent with all necessary information and contact details for each transfer agent for the BIP Unit certificates and
Class A Shares. The Rights Agent shall have no liability for the failure of any transfer agent to facilitate or effect any transfers contemplated hereby, or for any delay in doing so, or for the failure of BAM of its obligations under this Section
8(f). Prior to any transfer contemplated by this Agreement, BAM shall instruct the transfer agents for any BIP Unit certificates and Class A Shares to follow the instructions of the Rights Agent in connection with any exchange of Class A Shares for
BIP Units as set forth herein.
(g) In connection with any transfer by BAM of BIP Units or BIP Unit Convertibles
into the Collateral Account required by this Agreement which are held through DTC or another Depositary, BAM shall deliver to the Rights Agent such BIP Units or BIP Unit Convertibles to the Collateral Account pursuant to DTC's or such other
Depositary's Applicable Procedures. In connection with any transfer by BAM of BIP Units or BIP Unit Convertibles into the Collateral Account required by this Agreement which are not held through DTC or another Depositary, BAM shall take all
necessary action to cause such BIP Units or BIP Unit Convertibles to be delivered to the Collateral Account.
Section
9. Registration of BIP Unit Resales.
In the event that a shelf registration statement, prospectus or
Prospectus Exemption (as defined below) registering or exempting, as applicable, the transfer of BIP Units (including BIP Units that are issuable upon conversion of or redemption for BIP Unit Convertibles in the Collateral Account) from the
Collateral Account to an Exchanging Class A Shareholder (or to such other Person as may be entitled thereto pursuant to the terms of this Agreement) has, at any time, not been effective for five (5) consecutive Business Days, BAM shall, or shall
cause an Affiliate of BAM to, deposit in the Collateral Account an amount of cash or Cash Equivalents equal to the BIP Unit Release Price for all BIP Units held in the Collateral Account (including BIP Units that are issuable upon conversion of for
redemption for BIP Unit Convertibles in the Collateral Account) that cease to be Registered BIP Units (as defined below) as a result thereof, within five (5) Business Days; provided, however, for the avoidance of doubt, no such deposit
is required to the extent all of the BIP Units in the Collateral Account, including BIP Units that are issuable upon conversion of or redemption for BIP Unit Convertibles in the Collateral Account, and the transfer of such BIP Units (including BIP
Units that are issuable upon conversion of or redemption for BIP Unit Convertibles in the Collateral Account) from the Collateral Account to an Exchanging Class A Shareholder (or to such other Person as may be entitled thereto pursuant to the terms
of this Agreement) are (i) registered under the Securities Act pursuant to an effective shelf registration statement with the Securities and Exchange Commission and (ii) qualified for distribution by BAM to Exchanging Class A Shareholders under the
securities laws applicable in each of the provinces and territories of Canada through the filing of a prospectus (or exempt from the applicable prospectus requirements in such jurisdictions (a "Prospectus Exemption")) (each BIP Unit so
registered, including BIP Units that are issuable upon conversion of or redemption for BIP Unit Convertibles in the Collateral Account, a "Registered BIP Unit"). The Rights Agent shall have no duty or obligation (and no liability) to
determine if any BIP Unit, including BIP Units that are issuable upon conversion of or redemption for BIP Unit Convertibles, or any BIP Unit Convertible held in the Collateral Account or transferred to an Exchanging Class A Shareholder is a
Registered BIP Unit freely transferable under the U.S. federal securities laws or the laws applicable in each of the provinces and territories of Canada.
Section 10. Concerning BAM.
(a) BAM
agrees that any Class A Shareholder may at any time and from time to time, without notice to or further consent of BAM, extend the time of payment of the Exchange Rights or Secondary Exchange Rights, and may also make any agreement with the Company,
BIP, or any other Person, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between a Class A Shareholder, on the one hand, and the
Company, BIP or any such other Person, on the other hand, it being understood that no such action shall impair, affect, alter or increase BAM's obligations under this Agreement or affect the validity or enforceability of this Agreement.
(b) BAM agrees that its obligations hereunder shall in no way be terminated, affected or impaired by reason of (a) the assertion by any Class A Shareholder of any rights or
remedies which it may have under or with respect to this Agreement or against any Person obligated hereunder, (b) any Class A Shareholder's failure to exercise, or delay in exercising, any such right or remedy or any right or remedy such Class A
Shareholder may have hereunder, (c) any change in the structure or ownership of the Company, (d) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company, BIP or any other Person, (e) the existence of any claim,
set-off or other right that BAM may have at any time against the Company, BIP or any of their respective Affiliates, whether in connection with the Exchange Right, the Secondary Exchange Rights or otherwise; (f) the validity or enforceability of the
Exchange Right; or (g) any other circumstance whatsoever which constitutes, or might be construed to constitute, an equitable or legal discharge of the Company with respect to the Exchange Right, in bankruptcy or any other instance, other than as
provided herein.
(c) To the fullest extent permitted by applicable law, BAM hereby expressly waives any and all
rights or defenses arising by reason of any applicable law which would otherwise require any election of remedies by any Class A Shareholder. BAM waives promptness, diligence, notice of the acceptance of this Agreement and of the Exchange Right, all
defenses that may be available by virtue of any valuation, stay, moratorium law or other similar applicable law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other Person, and all suretyship
defenses generally. BAM acknowledges that it will receive substantial direct and indirect benefits from the Master Services Agreement and that this Agreement, including specifically the waivers set forth in this Agreement, is knowingly made in
contemplation of such benefits and after the advice of counsel.
(d) BAM hereby unconditionally waives any
rights that it may now have or hereafter acquire against the Company or its subsidiaries that arise from the existence, payment, performance, or enforcement of BAM's obligations under or in respect of this Agreement, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or indemnification.
(e) BAM hereby
represents and warrants that:
(i) the execution, delivery and performance of this Agreement have been duly and
validly authorized by all necessary action, and do not contravene any provision of BAM's organizational documents or any applicable law, order, judgment or contractual restriction binding on BAM or its assets;
(ii) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental
entity necessary for the due execution, delivery and performance of this Agreement by BAM have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental
entity is required in connection with the execution, delivery or performance of this Agreement;
(iii) this Agreement constitutes a legal, valid and binding obligation of the BAM enforceable against BAM in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar applicable laws affecting creditors' rights generally, and (ii) general equitable principles (whether
considered in a proceeding in equity or at law); and
(iv) as of the date hereof, BAM has the financial
capacity to pay and perform its obligations under this Agreement.
Section 11. Rights of Action.
All rights of action in respect of this Agreement, excepting the rights of action given to the Rights Agent under Section 12 hereof, are vested in the Class A Shareholders; and any Class A
Shareholder may, without the consent of the Rights Agent or of any other Class A Shareholder, on such holder's own behalf and for such holder's own benefit, enforce, and may institute and maintain any suit, action or proceeding against BAM to
enforce, or otherwise act in respect of, such holder's right to exercise the Secondary Exchange Rights and the Class A Shareholders' rights under this Agreement, in each case in the manner provided in the Company's Articles and in this Agreement.
Without limiting the foregoing or any remedies available to the Class A Shareholders, it is specifically acknowledged that the Class A Shareholders would not have an adequate remedy at law for any breach of this Agreement and will be entitled to
specific performance of the obligations under, and injunctive relief against actual or threatened violations of the obligations of any Person subject to, this Agreement. BAM agrees to pay all expenses, including all reasonable and documented third
party costs and out-of-pocket expenses (including reasonable fees of counsel), actually paid or incurred by such Class A Shareholder in enforcing any of such Class A Shareholder's rights hereunder or otherwise relating to any litigation or other
proceeding brought by such Class A Shareholder to enforce such Class A Shareholder's rights hereunder, if such Class A Shareholder prevails in such litigation or proceeding.
Section 12. Concerning the Rights Agent.
(a) BAM agrees to pay to the Rights Agent reasonable compensation for all services rendered by it hereunder in
accordance with Exhibit C attached hereto and, from time to time, on demand of the Rights Agent, its reasonable and documented out-of-pocket expenses and counsel fees and other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. BAM also agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability, or expense, incurred without gross negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted by the Rights Agent in connection with the acceptance and administration of this Agreement, including the costs and expenses of defending against any claim or liability in
connection therewith. The indemnification provided for hereunder shall survive the expiration of the Secondary Exchange Rights and the termination of this Agreement. The costs and expenses of enforcing this right of indemnification shall also be
paid by BAM. The Rights Agent shall have no right of set-off against any funds in the Collateral Account with respect to any amounts owed to the Rights Agent by BAM hereunder.
(b) The Rights Agent may conclusively rely upon and shall be protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with its administration of this Agreement in reliance upon any instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document reasonably believed by it, in good faith, to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of
legal counsel to the Rights Agent (who may be an employee of the Rights Agent or outside legal counsel for the Rights Agent). Notwithstanding anything in this Agreement to the contrary, in no event shall the Rights Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of the action.
Section 13. Merger or Consolidation or Change of Name of Rights Agent.
Any Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any Person succeeding to the corporate trust business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that such Person would be eligible for appointment as a successor Rights Agent under the provisions of Section 15 hereof. The acquisition of
substantially all of the Rights Agent's assets employed in the exercise of corporate trust powers shall be deemed to be a merger or consolidation for purposes of this Section 13.
Section
14. Duties of Rights Agent.
The Rights Agent undertakes the duties and obligations expressly set forth in
this Agreement which shall be deemed purely ministerial in nature and no implied duties or obligations shall be read into this Agreement against the Rights Agent. Under no circumstances will the Rights Agent be deemed to be a fiduciary to BAM, the
Company, any Class A Shareholder or any other person under this Agreement. The Rights Agent will not be responsible or liable for the failure of BAM, the Company, BIP, any transfer agent, any Class A Shareholder or any other person to perform in
accordance with this Agreement. The Rights Agent shall perform those duties and obligations upon the following terms and conditions:
(a) Before the Rights Agent acts or refrains from acting, it may consult with legal counsel (who may be an employee of the Rights Agent or outside legal counsel for the Rights
Agent), and the opinion of such counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by an authorized signatory of BAM identified in Exhibit B-2 attached hereto (which exhibit may be updated by BAM from time to time in BAM's reasonable discretion, provided that such update does not adversely
affect any Class A Shareholder or its rights hereunder in any respect) and delivered to the Rights Agent; and such certificate shall be full authorization to the Rights Agent for any action taken or suffered in good faith by it under the provisions
of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross negligence, bad faith or willful misconduct.
The Rights Agent shall not be liable, directly or indirectly, for any special, indirect or consequential damages or losses of any kind whatsoever (including without limitation lost profits), even if the Rights Agent has been advised of the
possibility of such losses or damages and regardless of the form of action.
(d) The Rights Agent shall not be
liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Company's Articles or be required to verify the same.
(e) The Rights Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof
by the Rights Agent); nor shall it be responsible for any breach by BAM of any covenant or condition contained in this Agreement; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or
reservation of any BIP Units to be issued pursuant to this Agreement or as to whether any BIP Units will, when so issued, be validly authorized and issued, fully paid and nonassessable.
(f) BAM agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments
and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept (and shall be entitled to conclusively and exclusively rely upon, without further inquiry) instructions with
respect to the performance of its duties hereunder from any Person reasonably believed by the Rights Agent to be one of the authorized signatories of BAM listed on Exhibit B-2 attached hereto (which exhibit may be updated by BAM from time to time in
BAM's reasonable discretion, provided that such update does not adversely affect any Class A Shareholder or its rights hereunder in any respect), and to apply to such Persons for advice or instructions in connection with its duties, and it shall not
be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer. Without limiting the generality of the foregoing, whenever the Rights Agent is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement, or in the event that the Rights Agent is unsure as to the application of any provision of this Agreement or believes any such provision is ambiguous as to its application, or
is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination or discretion by the Rights Agent or is silent or is incomplete as to the course of action that the Rights Agent is
required to take with respect to a particular set of facts, the Rights Agent shall promptly give notice (in such form as shall be appropriate under the circumstances) to BAM requesting instruction as to the course of action to be adopted, and to the
extent the Rights Agent acts in good faith in accordance with any written instructions received from BAM the Rights Agent shall not be liable on account of such action to any person. If the Rights Agent shall not have received appropriate
instruction within ten (10) days of such notice (or such shorter period as reasonably may be specified in such notice or as may be necessary under the circumstances) it shall be entitled to take no action and shall give prompt written notice of its
decision not to take action to BAM, to the Company, and to any Exchanging Class A Shareholder that may be affected by such decision not to take action. Any application by the Rights Agent for written instructions from BAM may, at the option of the
Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be
liable for any action taken by, or omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application unless, prior to taking any such action (or the effective date in the
case of an omission), the Rights Agent shall have received, in response to such application, written instructions with respect to the proposed action or omission specifying a different action to be taken or omitted.
(h) To the extent permitted by applicable law, the Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the
Class A Shares or other securities of the Company or become pecuniarily interested in any transaction in which BAM or the Company may be interested, or contract with or lend money to BAM or the Company or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity for BAM, the Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to BAM or the Class A Shareholders resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the selection and continued employment thereof.
(j) No
provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability (other than expenses and overhead incurred in the ordinary course by the Rights Agent's performance under this
Agreement) in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) Other than with respect to a Company Notice, Exchanging Class A Shareholder
Notice, BAM instruction, or deposit of Class A Shares in the Received Class A Share Account in accordance with Section 4, the Rights Agent shall not be required to take notice or be deemed to have notice of any fact, event or determination under
this Agreement unless and until the Rights Agent shall be specifically notified in writing by BAM of such fact, event or determination.
(l) The Rights Agent shall not be responsible or liable for any failure or delay in the performance of its
obligation under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; wars; acts of terrorism; civil or military
disturbances; sabotage; epidemic; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or military authority or governmental action; it being
understood that the Rights Agent shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances.
(m) The Rights Agent may rely upon and shall not be liable for acting or refraining from acting upon any written
notice, instruction or request furnished to it hereunder in accordance with the terms of this Agreement and reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Rights Agent shall be under
no duty to inquire into or investigate the validity, accuracy or content of any such document.
(n) Unless
subject to reimbursement by BAM pursuant to Section 12(a) or reasonably necessary in order for the Rights Agent to perform its express obligations hereunder in accordance herewith, notwithstanding anything contained herein or elsewhere to the
contrary, the Rights Agent shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (x) require the Rights Agent in its individual capacity to obtain the consent, approval,
authorization or order of or the giving of notice to, or the registration with, or taking of any action in respect of, any state or other governmental authority or agency other than the State of Delaware; (y) result in any fee, tax or other
governmental charge under the laws of any jurisdiction other than the State of Delaware becoming payable by the Rights Agent in its individual capacity, or (z) subject the Rights Agent in its individual capacity to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Rights Agent contemplated hereby.
(o) The right of the Rights Agent to perform any discretionary act (if any) enumerated in this Agreement shall not be construed as a duty.
Section 15. Change of Rights Agent.
The Rights Agent or
any successor Rights Agent may resign and be discharged from its duties under this Agreement upon 30 days' notice in writing mailed to BAM and the Company and to each transfer agent of the Class A Shares and the BIP Units by registered or certified
mail. BAM may remove the Rights Agent or any successor Rights Agent upon 30 days' notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer agent of the Class A Shares and the BIP Units by
registered or certified mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, BAM shall appoint a successor to the Rights Agent. If BAM shall fail to make such appointment within a period of 30 days
after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by a Class A Shareholder, then any Class A Shareholder may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by BAM or by such a court, shall be a corporation organized and doing business under the laws of the United States or of any state of the
United States, in good standing, which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by federal or state authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $100 million. After appointment, the successor Rights Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and transfer to the successor Rights Agent any property at the time held by it hereunder, including, without limitation, the Collateral Account, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment BAM shall file notice thereof in writing with the predecessor Rights Agent, the Company, and each transfer agent of the Class A Shares and
the BIP Units. Failure to give any notice provided for in this Section 15, however, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 16. Notices.
Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by any Exchanging Class A Shareholder, other Class A Shareholder, or other holder of a Secondary Exchange Right, to or on BAM shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the Rights Agent) as follows:
Brookfield Asset Management Inc.
Brookfield Place, Suite 300
181 Bay Street, P.O.
Box 762
Toronto, Ontario, Canada M5J 2T3
Attention: Chief Legal Officer
Subject to the provisions of Section 15 hereof, any notice or demand authorized by this Agreement to be given
or made by BAM or by any Exchanging Class A Shareholder, other Class A Shareholder, or other holder of a Secondary Exchange Right to or on the Rights Agent shall be sufficiently given or made if sent by registered or certified mail and shall be
deemed given upon receipt and, addressed (until another address is filed in writing with BAM) as follows:
Wilmington Trust, National Association
Attn: Robert L. Reynolds
246 Goose Lane,
Suite 105
Guilford, CT 06437
Phone: (203) 453-1318
Fax: (203) 453-1183
Email: rlreynolds@wilmingtontrust.com
With a copy to the following
Email address: restructuring@wilmingtontrust.com
Notices or demands authorized by this Agreement to be given or made by BAM or the Rights Agent to any
Class A Shareholder shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown on the registry books of the Company or the transfer agent for the Class A
Shares.
Section 17. Supplements and Amendments.
BAM may
from time to time, and the Rights Agent shall, if BAM so directs, supplement or amend this Agreement without the approval of any Class A Shareholder in order to cure any ambiguity, to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, to make modifications necessary to reflect changes in applicable law, including, without limitation, tax law, or to make any other change, in each case, provided that such change,
amendment, modification or supplementation does not adversely affect any Class A Shareholder or its rights hereunder in any respect. Except as set forth in the immediately preceding sentence or as otherwise contemplated by Section 4(a)(i) or Section
14(b) with respect to updates to Exhibits B-1 and B-2, any amendment or modification to this Agreement shall require (a) pursuant to a consent request duly conducted by, and at the expense of, BAM or (b) at a duly called annual or special meeting of
the Company's shareholders, the affirmative consent or vote, as applicable, of holders of at least two-thirds of the outstanding Class A Shares not held by BAM, BIP or their controlled Affiliates, voting as a class, and the approval of a majority of
the independent directors (within the meaning of the listing standards of the securities exchange on which the Company's securities may then be listed) of the Company. Any supplement or amendment authorized by this Section 17 shall be
evidenced by a writing signed by BAM and the Rights Agent. Notwithstanding anything in this Agreement to the contrary, no supplement or amendment that changes the rights and duties of the Rights Agent under this Agreement will be effective against
the Rights Agent without the execution of such supplement or amendment by the Rights Agent. In executing any amendment or supplement contemplated hereby, the Rights Agent shall be provided with, and shall be entitled to conclusively and exclusively
rely upon, an opinion of counsel (which may be counsel to BAM) stating that the execution of such amendment or supplement is authorized or permitted by this Agreement and all conditions precedent to the execution and delivery thereof have been duly
satisfied or waived.
Section 18. Successors.
All the
covenants and provisions of this Agreement by or for the benefit of BAM or the Rights Agent shall bind and inure to the benefit of their respective successors and assigns hereunder.
Section 19. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any Person other than BAM,
the Rights Agent and the Class A Shareholders any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of BAM, the Rights Agent and the Class A Shareholders.
Section 20. Severability.
If any term, provision,
covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.
Section 21. Governing Law; Forum Selection.
This Agreement and the Secondary Exchange Rights issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State. Each
party to this Agreement irrevocably and unconditionally agrees to be, and all the rights governed by this Agreement, including the rights of the Class A Shareholders in accordance with Section 11 shall be, subject to the exclusive
jurisdiction of the state courts sitting in the City of Wilmington in the State of Delaware and of the United States of America located in the District of the State of Delaware for any actions, suits or proceedings arising out of, or relating to,
this Agreement. No action, suit or proceeding relating thereto shall be commenced in any other court. Service of any process, summons, notice or document if delivered or made pursuant to Section 16 shall be effective service of process for
any action, suit or proceeding. Each party to this Agreement hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the aforementioned courts and hereby further irrevocably and unconditionally waives all claims, and agrees not to plead or claim in any such court, that any action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
Section 22. Counterparts.
This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but
one and the same instrument.
Section 23. Descriptive Headings.
The table of contents and descriptive headings of the several Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 24. Administration; Termination.
This Agreement shall terminate on the earliest to occur of (i) the first Business Day where there shall be no Class A Shares outstanding, other than Class A Shares owned by BAM or its Affiliates,
(ii) (a) pursuant to a consent request duly conducted by, and at the expense of, BAM or (b) at a duly called annual or special meeting of the Company's shareholders, the affirmative consent or vote, as applicable, of holders of at least two-thirds
of the outstanding Class A Shares not held by BAM, BIP or their controlled Affiliates, voting as a class, and the approval of a majority of the independent directors (within the meaning of the listing standards of the securities exchange on which
the Company's securities may then be listed) of the Company, and (iii) the Final Expiration Date. BAM shall provide the Rights Agent with written notice of the termination of this Agreement pursuant to section (i) or (ii) above.
Section 25. No Waiver; Cumulative Rights.
No failure on the part of any Class A Shareholder to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by any Class A Shareholder of any right, remedy or power hereunder preclude any other or future exercise of any right,
remedy or power hereunder by such Class A Shareholder or any other Class A Shareholder. Each and every right, remedy and power hereby granted to the Class A Shareholders shall be cumulative and not exclusive of any other right, remedy or power, and
may be exercised by any Class A Shareholder at any time or from time to time.
Section 26. Fractional
Units.
Class A Shareholders holding a number of Subject Class A Shares which would entitle such holders to receive less than one whole BIP Unit pursuant to this Agreement shall receive cash
in lieu of fractional units. Fractional BIP Units shall not be distributed to Class A Shareholders or credited to book-entry accounts. With respect to any delivery of BIP Units to a Class A Shareholder under this Agreement, BAM shall promptly
instruct the transfer agent for the BIP Units to, as soon as practicable, (a) determine the number of whole BIP Units and fractional BIP Units allocable to each holder of record or beneficial owner of Class A Shares entitled to receive BIP Units at
such time, (b) aggregate all such fractional units into whole BIP Units and sell the whole BIP Units obtained thereby in open market transactions, in each case, at then-prevailing trading prices on behalf of holders who would otherwise be entitled
to fractional BIP Units, and (c) distribute to each such holder, or for the benefit of each such beneficial owner, such holder or owner's ratable share of the net proceeds of such sale, based upon the average gross selling price per BIP Unit after
making appropriate deductions for any amount required to be withheld for tax purposes and any brokerage fees incurred in connection with these sales of fractional BIP Units. Neither BAM nor the Rights Agent will guarantee any minimum sale price for
the fractional BIP Units. Neither BAM nor the Rights Agent will pay any interest on the proceeds from the sale of fractional BIP Units. The transfer agent of the BIP Units acting on behalf of the applicable party will have the sole discretion to
select the broker-dealers through which to sell the aggregated fractional BIP Units and to determine when, how and at what price to sell such units, provided that neither the transfer agent nor the broker-dealers through which the aggregated
fractional BIP Units are sold shall be Affiliates of BAM.
Section 27. Book Entry.
Reference in this Agreement to certificates for Class A Shares or BIP Units shall include, in the case of uncertificated shares or units, the balances indicated in the book-entry account system of
the transfer agent for the Class A Shares or BIP Units, as applicable. Any legend required to be placed on any certificates for Class A Shares or BIP Units may instead be included on any book-entry confirmation or notification to the registered
holder of such Class A Shares or BIP Units.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective duly authorized officers as of the day and year first above written.
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Brookfield Asset Management Inc.
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Managing Director
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Wilmington Trust, National Association as Rights Agent
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By:
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/s/ Robert L. Reynolds
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Name: Robert L. Reynolds
Title: Vice President
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[Signature Page to Rights
Agreement]
EXHIBIT A
Form of the Company's
Articles
BUSINESS CORPORATIONS ACT
ARTICLES
of
BROOKFIELD INFRASTRUCTURE CORPORATION
TABLE OF CONTENTS
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PART 1 INTERPRETATION
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1
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PART 2 SHARES AND SHARE CERTIFICATES
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16
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PART 3 ISSUE OF SHARES
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18
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PART 4 SHARE REGISTERS
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19
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PART 5 SHARE TRANSFERS
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19
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PART 6 TRANSMISSION OF SHARES
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20
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PART 7 PURCHASE, REDEEM OR OTHERWISE ACQUIRE SHARES
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21
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PART 8 BORROWING POWERS
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22
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PART 9 ALTERATIONS
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22
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PART 10 MEETINGS OF SHAREHOLDERS
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23
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PART 11 PROCEEDINGS AT MEETINGS OF SHAREHOLDERS
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26
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PART 12 VOTES OF SHAREHOLDERS
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30
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PART 13 DIRECTORS
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35
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PART 14 ELECTION AND REMOVAL OF DIRECTORS
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36
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PART 15 POWERS AND DUTIES OF DIRECTORS
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43
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PART 16 INTERESTS OF DIRECTORS AND OFFICERS
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44
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PART 17 PROCEEDINGS OF DIRECTORS
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45
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PART 18 EXECUTIVE AND OTHER COMMITTEES
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48
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PART 19 OFFICERS
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50
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PART 20 INDEMNIFICATION
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50
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PART 21 DIVIDENDS
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52
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PART 22 ACCOUNTING RECORDS AND AUDITOR
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54
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PART 23 NOTICES
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54
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PART 24 PROHIBITIONS
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57
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PART 25 SPECIAL RIGHTS AND RESTRICTIONS CLASS A EXCHANGEABLE SUBORDINATE VOTING SHARES
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58
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PART 26 SPECIAL RIGHTS AND RESTRICTIONS CLASS B MULTIPLE VOTING SHARES
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67
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PART 27 SPECIAL RIGHTS AND RESTRICTIONS CLASS C NON-VOTING SHARES
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70
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PART 28 SPECIAL RIGHTS AND RESTRICTIONS CLASS A SENIOR PREFERRED SHARES
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73
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PART 29 SPECIAL RIGHTS AND RESTRICTIONS CLASS B JUNIOR PREFERRED SHARES
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74
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BUSINESS CORPORATIONS ACT
ARTICLES
of
BROOKFIELD INFRASTRUCTURE CORPORATION
(the "Company")
PART
1
INTERPRETATION
Definitions
1.1 In these Articles, unless the context otherwise
requires:
(a) "Act" means the Business Corporations Act (British Columbia) from time to time in force and all
amendments thereto and includes all regulations and amendments thereto made pursuant to that Act;
(b) "affiliate" means
with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person;
(c) "BAM" means Brookfield Asset Management Inc., a corporation existing under the Laws of the Province of Ontario, and is
deemed to refer to all successors, including, without limitation, by operation of Law;
(d) "BIP" means Brookfield
Infrastructure Partners L.P., a Bermuda exempted limited partnership, and is deemed to refer to all successors, including, without limitation, by operation of Law;
(e) "BIP-Affiliated Class A Shareholder" means BIP or a Person Controlled by BIP to the extent BIP or such other Person holds Class A Shares;
(f) "BIP Distribution Declaration Date" means the date on which the BIP GP declares any distribution on the BIP Units;
(g) "BIP Distributed Right" has the meaning as provided in clause (ii) of the definition of "Conversion Factor" below;
(h) "BIP GP" means the general partner of BIP from time to time;
(i) "BIP Liquidation Event" has the meaning as provided in §25.25;
(j) "BIP Unit" means a limited partnership interest in BIP representing a fractional part of all the limited partnership
interests in BIP, other than a preferred limited partnership interest, and which limited partnership interest is designated by BIP as an "Equity Unit" (as defined in the Amended and Restated Limited Partnership Agreement of BIP dated as of February
16, 2018), and includes any limited partnership interest or other equity interest of BIP into which such BIP Unit is converted or for which such BIP Unit is exchanged;
(k) "BIP Unit Value" means, with respect to a BIP Unit on a particular date, the market price of a BIP Unit on such date or, if such date is not a Trading Day, the most recent Trading
Day. The market price for each such Trading Day shall be: (i) if the BIP Units are listed on a U.S. National Securities Exchange, the closing price per BIP Unit (or, if no closing price is reported, the average of the last quoted bid and ask prices
or, if more than one in either case, the average of the average bid and average ask prices) on such day for such U.S. National Securities Exchange; (ii) if the BIP Units are not listed on a U.S. National Securities Exchange but are listed on the
TSX, the U.S. dollar equivalent (calculated using the rate published by the Bank of Canada as of 4:30 p.m., Eastern Time, on such date) of the closing price per BIP Unit (or, if no closing price is reported, the average of the last quoted bid and
ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for the TSX; (iii) if the BIP Units are not listed or admitted to trading on any U.S. National Securities Exchange or the TSX, the
last quoted bid price on such day in the over-the-counter market on such day as reported by OTC Markets Group Inc. or a similar organization; (iv) if the BIP Units are not listed or admitted to trading on any U.S. National Securities Exchange or the
TSX and the BIP Units are not quoted in the over-the-counter market, the average of the mid-point of the last quoted bid and ask prices on such day from each of at least three nationally recognized independent investment banking firms selected by
the Company for such purpose or (v) if none of the conditions set forth in clauses (i), (ii), (iii) or (iv) is met, then the amount that a holder of one BIP Unit would receive if each of the assets of BIP were sold for its fair market value on such
date, BIP were to pay all of its outstanding liabilities and the remaining proceeds were to be distributed to its partners in accordance with the terms of its partnership agreement;
(l) "BIP Units Amount" means, with respect to each Tendered Share, such number of BIP Units equal to the Conversion Factor in effect on the Valuation Date with respect to such Tendered
Shares;
(m) "board of directors", "directors" and "board" mean the directors or sole director of the Company
for the time being;
(n) "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in
New York, New York, United States of America or Toronto, Ontario, Canada are authorized or required by Law to close;
(o) "Cash
Amount" means (a) with respect to each Tendered Class A Share, an amount in cash equal to the product of (i) the applicable BIP Units Amount for such Tendered Class A Share multiplied by (ii) the BIP Unit Value as of the applicable Valuation
Date, and (b) with respect to each Tendered Class B Share and Tendered Class C Share, an amount in cash equal to the BIP Unit Value for such Tendered Class B Share or Tendered Class C Share, as applicable;
(p) "Class A Distributed Right" has the meaning as provided in clause (vi) of the definition of "Conversion Factor" below;
(q) "Class A Dividend" has the meaning as provided in §25.2;
(r) "Class A Senior Preferred Share" means a class A senior preferred share of the Company;
(s) "Class A Share" means a class A exchangeable subordinate voting share of the Company;
(t) "Class A Share Value" means, with respect to a Class A Share on a particular date, the market price of a Class A Share on
such date or, if such date is not a Trading Day, the most recent Trading Day. The market price for each such Trading Day shall be: (i) if the Class A Shares are listed on a U.S. National Securities Exchange, the closing price per Class A Share (or,
if no closing price is reported, the average of the last quoted bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for such U.S. National Securities Exchange; (ii) if the Class
A Shares are not listed on a U.S. National Securities Exchange but are listed on the TSX, the U.S. dollar equivalent (calculated using the rate published by the Bank of Canada as of 4:30 p.m., Eastern Time, on such date) of the closing price per
Class A Share (or, if no closing price is reported, the average of the last quoted bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for the TSX; (iii) if the Class A Shares
are not listed or admitted to trading on any U.S. National Securities Exchange or the TSX, the last quoted bid price on such day in the over-the-counter market on such day as reported by OTC Markets Group Inc. or a similar organization; (iv) if the
Class A Shares are not listed or admitted to trading on any U.S. National Securities Exchange or the TSX and the Class A Shares are not quoted in the over-the-counter market, the average of the mid-point of the last quoted bid and ask prices on such
day from each of at least three nationally recognized independent investment banking firms selected by the Company for such purpose or (v) if none of the conditions set forth in clauses (i), (ii), (iii) or (iv) is met then the amount that a holder
of one Class A Share would receive if each of the assets of the Company were sold for its fair market value on such date, the Company were to pay all of its outstanding liabilities and the remaining proceeds were to be distributed to its
shareholders in accordance with the terms of these Articles;
(u) "Class A Shareholder" means a holder of Class A
Shares;
(v) "Class B Junior Preferred Share" means a class B junior preferred share of the Company;
(w) "Class B Retraction Amount" has the meaning as provided in §26.11;
(x) "Class B Retraction Right" has the meaning as provided in §26.11;
(y) "Class B Share" means a class B multiple voting share of the Company;
(z) "Class B Shareholder" means a holder of Class B Shares;
(aa) "Class C Retraction Amount" has the meaning as provided in §27.8;
(bb) "Class C Retraction Right" has the meaning as provided in §27.8;
(cc) "Class C Share" means a class C non-voting share of the Company;
(dd) "Class C Shareholder" means a holder of Class C Shares;
(ee) "Close of Business" means 5:00 p.m., Eastern Time;
(ff) "Company" means Brookfield Infrastructure Corporation;
(gg) "Control" means the control by one Person of another Person in accordance with the following: a Person ("A") controls another Person ("B") where A has the power to
determine the management and policies of B by contract or status (for example, the status of A being the general partner of B) or by virtue of the beneficial ownership of or control over a majority of the voting interests in B; and, for certainty
and without limitation, if A owns or has control over shares or other securities to which are attached more than 50% of the votes permitted to be cast in the election of directors of to the Governing Body of B or A is the general partner of B, a
limited partnership, then in each case A controls B for this purpose;
(hh) "Conversion Factor" means 1.0; provided that in
the event that:
(i) BIP (a) declares or pays a distribution on its outstanding BIP Units wholly or partly in BIP Units; (b)
splits or subdivides its outstanding BIP Units or (c) effects a reverse unit split or otherwise combines or reclassifies its outstanding BIP Units into a smaller number of BIP Units, the Conversion Factor shall be adjusted to equal the amount
determined by multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date for such event by a fraction, (x) the numerator of which shall be the number of BIP Units issued and outstanding as of the Close
of Business on the Record Date for such distribution or the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable (assuming for such purpose that such distribution, split, subdivision, reverse
split, combination or reclassification has occurred as of such time), and (y) the denominator of which shall be the actual number of BIP Units (determined without the above assumption) issued and outstanding as of the Close of Business on the Record
Date for such distribution or the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable.
Any adjustment under this clause (i) shall become effective immediately after the Open of Business on the Record Date
for such distribution, or immediately after the Open of Business on the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable. If such distribution of the type described in this clause (i) is
declared but not so paid or made and will not be so paid or made, the Conversion Factor shall be immediately readjusted, effective as of the date the BIP GP determines not to pay such distribution, to the Conversion Factor that would be in effect if
such distribution had not been declared.
(ii) BIP distributes any rights, options or warrants to all or substantially all
holders of BIP Units to convert into, exchange for or subscribe for or to purchase or to otherwise acquire BIP Units (or other securities convertible into, exchangeable for or exercisable for BIP Units) (each a "BIP Distributed Right"), then,
as of the Record Date for the distribution of such BIP Distributed Rights or, if later, the time such BIP Distributed Rights become exercisable, the Conversion Factor shall be adjusted to equal the amount determined by multiplying the Conversion
Factor in effect immediately prior to the Open of Business on the Record Date by a fraction (A) the numerator of which shall be the number of BIP Units issued and outstanding as of the Close of Business on the Record Date (or, if later, the date
such BIP Distributed Rights become exercisable) plus the maximum number of BIP Units deliverable or purchasable under such BIP Distributed Rights and (B) the denominator of which shall be (x) the number of BIP Units issued and outstanding as of the
Close of Business on the Record Date plus (y) such number of BIP Units determined by dividing the minimum aggregate cash purchase price under such BIP Distributed Rights of the maximum number of BIP Units purchasable under such BIP Distributed
Rights by the average of the BIP Unit Value for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance (or, if later, the date such BIP Distributed Rights
become exercisable); provided, however, that, if any such BIP Distributed Rights expire or become no longer exercisable, then the Conversion Factor shall be adjusted, effective retroactive to the Record Date of the BIP Distributed Rights, to reflect
a reduced maximum number of BIP Units or any change in the minimum aggregate purchase price for the purposes of the above fraction.
Any adjustment under this clause (ii) will be made
successively whenever such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Record Date for such issuance (or, if later, the date such rights, options or warrants become exercisable). To
the extent that the BIP Units are not delivered and will not be delivered after the exercise of such rights, options or warrants, the Conversion Factor shall be decreased to the Conversion Factor that would then be in effect had the increase with
respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of BIP Units actually delivered. If such rights, options or warrants are not so issued, the Conversion Factor shall be decreased,
effective as of the date the BIP GP determines not to issue such rights, options or warrants, to the Conversion Factor that would then be in effect if such Record Date for such issuance had not occurred.
In
determining the minimum aggregate purchase price under such BIP Distributed Rights, there shall be taken into account any consideration received by BIP for such rights, options or warrants and any amount payable on exercise or conversion thereof,
the value of such consideration, if other than cash, to be determined by the BIP GP.
(iii) (A) BIP distributes to all or
substantially all holders of BIP Units evidences of its indebtedness or assets (including securities, but excluding distributions paid exclusively in cash, distributions referred to in clauses (i) or (ii) above or any Spin-off referred to in clause
(iii)(B) below) or rights, options or warrants to convert into, exchange for or subscribe for or to purchase or to otherwise acquire such securities (but excluding distributions referred to in clause (ii) above), the Conversion Factor shall be
adjusted to equal the amount determined by multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date for such distribution by a fraction (a) the numerator of which shall be the average of the BIP Unit
Value over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately prior to the Ex-Dividend Date for such distribution and (b) the denominator of which shall be the average of the BIP Unit Value over the ten
(10) consecutive Trading Day period ending on, and including, the Trading Day immediately prior to the Ex-Dividend Date for such distribution less the fair market value on the Record Date for such distribution (as determined by the BIP GP) of the
portion of the evidences of indebtedness or assets, rights, options or warrants so distributed applicable to one BIP Unit.
Any adjustment under this clause (iii)(A) will become effective
immediately after the Open of Business on the Record Date for such distribution. If such distribution is not paid or made, the Conversion Factor shall be decreased, effective as of the date the BIP GP determines not to pay or make such distribution,
to be the Conversion Factor that would then be in effect if such distribution had not been declared.
Notwithstanding the foregoing, if the fair market value (as determined by the BIP GP) of
the portion of the evidences of indebtedness or assets, rights, options or warrants distributable to one BIP Unit is equal to or greater than the average BIP Unit Value referenced above in this clause (iii)(A), in lieu of the foregoing adjustment,
each Class A Shareholder shall receive from the Company, in respect of each Class A Share, a distribution of cash payable out of the funds legally available therefor (at the same time as holders of the BIP Units), that in the determination of the
Company, is comparable as a whole in all material respects with the amount of BIP indebtedness or assets or rights, options or warrants to convert into, exchange for or subscribe for or to purchase or to otherwise acquire such securities that such
holder would have received if such holder owned a number of BIP Units equal to the Conversion Factor in effect immediately prior to the Record Date.
(B) Where there has been a Spin-off, the Conversion Factor shall be adjusted to equal the amount determined by
multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date for such Spin-off by a fraction (a) the numerator of which shall be the average of the Last Reported Sale Prices of the share capital or similar
equity interest applicable to one BIP Unit distributed to BIP Unit holders over the Valuation Period plus the average of the BIP Unit Value over the Valuation Period and (b) the denominator of which shall be the average of the BIP Unit Value over
the Valuation Period; provided that, the Company may elect to pay cash in lieu of making an adjustment to the Conversion Factor provided by this clause (iii)(B), in which case the Company shall be required to pay to the Class A Shareholders and the
Class A Shareholders shall be entitled to receive, cash on the third (3rd) Business Day immediately following the last Trading Day of the Valuation Period in an amount in respect of each Class A Share held, calculated by multiplying the BIP Unit
Value on the Record Date of such Spin-off by the amount the Conversion Factor would have increased as a result of such Spin-off if no such cash payment was made.
Any adjustment under this
clause (iii)(B) will be made immediately after the Close of Business on the last Trading Day of the Valuation Period, but will be given effect as of the Open of Business on the Record Date for such Spin-off.
Notwithstanding the foregoing, in respect of any exchange by a Class A Shareholder during the Valuation Period, references contained in the definition of Valuation Period to "ten (10) consecutive
Trading Days" shall be deemed for the purposes of the foregoing for such holder to be replaced with such lesser number of Trading Days as have elapsed between the Record Date of such Spin-off and the Trading Day immediately preceding the Exchange
Date in determining the Conversion Factor. If any such Spin-off does not occur, the Conversion Factor shall be decreased, effective as of the date the BIP GP determines not to proceed with the Spin-off, to be the Conversion Factor that would then be
in effect if such Spin-off had not been pursued.
(iv) BIP or one of its subsidiaries makes a payment in respect of a tender or
exchange offer for the BIP Units (but excluding for all purposes any tender or exchange offer involving an offer to exchange BIP Units for Class A Shares or any other security that is economically equivalent to BIP Units), to the extent that the
cash and value of any other consideration included in the payment per BIP Unit exceeds the average of the BIP Unit Value over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on
which tenders or exchanges may be made pursuant to such tender or exchange offer (the "Expiration Date"), then the Conversion Factor shall be adjusted to equal the amount determined by multiplying the Conversion Factor in effect immediately
prior to the Open of Business on the Trading Day next succeeding the Expiration Date by a fraction (a) the numerator of which shall be (x) the sum of the aggregate value of all cash and any other consideration (as determined by the BIP GP) paid or
payable in respect of BIP Units in such tender or exchange offer plus (y) the average of the BIP Unit Value over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date multiplied
by the number of BIP Units issued and outstanding immediately after the Expiration Date (after giving effect to the purchase of all BIP Units accepted for purchase or exchange in such tender or exchange offer, without duplication), and (b) the
denominator of which shall be the number of BIP Units issued and outstanding immediately prior to the Expiration Date (before giving effect to the purchase of all BIP Units accepted for purchase or exchange in such tender or exchange offer)
multiplied by the average of the BIP Unit Value over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.
For greater
certainty, no adjustment under this clause (iv) will be made for any normal course issuer bid or similar stock buyback. Any adjustment under this clause (iv) will be made immediately after the Close of Business on the tenth (10th) Trading Day
immediately following, and including, the Trading Day next succeeding the Expiration Date and shall be given effect as of the Open of Business on the day next succeeding the Expiration Date.
Notwithstanding the foregoing, in respect of any exchange by a Class A Shareholder during the Valuation Period, references above to "ten (10) consecutive Trading Days" shall be deemed for such
holder to be replaced with such lesser number of Trading Days as have elapsed between the Expiration Date and the Trading Day immediately preceding the Exchange Date in determining the Conversion Factor.
(v) the Company (a) declares or pays a dividend on its outstanding Class A Shares wholly or partly in Class A Shares; (b) splits or
subdivides its outstanding Class A Shares or (c) effects a reverse share split or otherwise combines or reclassifies its outstanding Class A Shares into a smaller number of Class A Shares, the Conversion Factor shall be adjusted to equal the amount
determined by multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date for such event by a fraction, (x) the numerator of which shall be the number of Class A Shares issued and outstanding as of the
Close of Business on the Record Date for such dividend or the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable (determined without the assumption for such purpose that such dividend, split,
subdivision, reverse split, combination or reclassification has occurred as of such time), and (y) the denominator of which shall be the actual number of Class A Shares (assuming the above assumption has occurred) issued and outstanding as of the
Close of Business on the Record Date for such dividend or the Effective Date for such split, subdivision, reverse split, combination or reclassification, as applicable.
Any
adjustment under this clause (v) shall become effective immediately after the Open of Business on the Record Date for such dividend, or immediately after the Open of Business on the Effective Date for such split, subdivision, reverse split,
combination or reclassification, as applicable. If such dividend of the type described in this clause (v) is declared but not so paid or made and will not be so paid or made, the Conversion Factor shall be immediately readjusted, effective as of the
date the board of directors determines not to pay such dividend, to the Conversion Factor that would be in effect if such dividend had not been declared.
(vi) the Company distributes any rights, options or warrants to all or substantially all holders of Class A Shares to convert into, exchange for or subscribe for or to purchase or to otherwise
acquire Class A Shares (or other securities convertible into, exchangeable for or exercisable for Class A Shares) at a price per share that is less than the average of the Class A Share Value for the ten (10) consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the date of announcement of such issuance (each a "Class A Distributed Right"), then, as of the Record Date for the distribution of such Class A Distributed Rights or, if later, the
time such Class A Distributed Rights become exercisable, the Conversion Factor shall be adjusted to equal the amount determined by multiplying the Conversion Factor in effect immediately prior to the Open of Business on the Record Date by a fraction
(A) the numerator of which shall be (x) the number of Class A Shares issued and outstanding as of the Close of Business on the Record Date (or, if later, the date such Class A Distributed Rights become exercisable) plus (y) such number of Class A
Shares determined by dividing the minimum aggregate cash purchase price under such Class A Distributed Rights of the maximum number of Class A Shares purchasable under such Class A Distributed Rights by the average of the Class A Share Value for the
ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance (or, if later, the date such Class A Distributed Rights become exercisable) and (B) the denominator of
which shall be the number of Class A Shares issued and outstanding as of the Close of Business on the Record Date (or, if later, the date such Class A Distributed Rights become exercisable) plus the maximum number of Class A Shares purchasable under
such Class A Distributed Rights; provided, however, that, if any such Class A Distributed Rights expire or become no longer exercisable, then the Conversion Factor shall be adjusted, effective retroactive to the Record Date of the Class A
Distributed Rights, to reflect a reduced maximum number of Class A Shares or any change in the minimum aggregate purchase price for the purposes of the above fraction.
Any adjustment under
this clause (vi) will be made successively whenever such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Record Date (or, if later, the date such Class A Distributed Rights become
exercisable) for such issuance. To the extent that the Class A Shares are not delivered and will not be delivered after the exercise of such rights, options or warrants, the Conversion Factor shall be increased to the Conversion Factor that would
then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of Class A Shares actually delivered. If such rights, options or warrants are not so issued,
the Conversion Factor shall be increased, effective as of the date the board of directors determines not to issue such rights, options or warrants, to the Conversion Factor that would then be in effect if such Record Date for such issuance had not
occurred.
In determining the minimum aggregate purchase price under such Class A Distributed Rights, there shall be taken into account any consideration received by the Company for such rights, options or
warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the board of directors.
Any adjustment to the
Conversion Factor shall be calculated up to four (4) decimal places. Within ten (10) Business Days of the effectiveness of any adjustment or readjustment of the Conversion Factor, the Company shall make a public announcement of such adjustment or
readjustment.
Notwithstanding the foregoing, the Conversion Factor shall not be adjusted in connection with (a) an event described in clauses (i) through (iv) above (other than clause (iii)(B)
above) if, in connection with such event, the Company makes a distribution of cash, Class A Shares, BIP Units and/or rights, options or warrants to acquire Class A Shares and/or BIP Units with respect to all applicable Class A Shares, splits or
subdivides the Class A Shares, distributes to all or substantially all holders of Class A Shares evidences of its indebtedness or assets or effects a reverse split of, or otherwise combines or makes an offer for, the Class A Shares, as applicable,
that, in the determination of the Company, is comparable as a whole in all material respects with such event, (b) a Spin-off as described in clause (iii)(B) above if the Company makes a distribution of the share capital or similar equity interests
distributed to BIP Unit holders in the Spin-off in an amount and on terms that are comparable in all material respects to such Spin-off, or (c) an event described in clauses (v) through (vi) above if, in connection with such event, BIP makes a
distribution of cash, Class A Shares, BIP Units and/or rights, options or warrants to acquire Class A Shares and/or BIP Units with respect to all BIP Units, splits or subdivides the BIP Units or effects a reverse split of, or otherwise combines or
makes an offer for, the BIP Units, as applicable, that, in the determination of the Company, is comparable as a whole in all material respects with such event;
(ii) "Conversion Notice" has the meaning as provided in §25.31;
(jj) "Effective Date" means, with respect to an event
described in clauses (i) and (v) of the definition of "Conversion Factor" above, the first date on which the BIP Units or Class A Shares, as applicable, trade on the applicable exchange or in the applicable market, in a regular way, reflecting the
relevant unit or share split, subdivision, reserve split, combination or reclassification, as applicable;
(kk) "Exchange
Act" means the U.S. Securities Exchange Act of 1934, as amended;
(ll) "Exchange Consideration" has the meaning as
provided in §25.13;
(mm) "Exchange Date" means the date upon which a Tendering Class A Shareholder's Exchange Right
has been satisfied by the delivery of the Exchange Consideration to such Tendering Class A Shareholder with respect to its Tendered Class A Shares;
(nn) "Exchange-Redemption Call Right" has the meaning as provided in §25.23;
(oo) "Exchange Right" has the meaning as provided in §25.11;
(pp) "Ex-Dividend Date" means, in respect of a dividend or distribution on the applicable securities, (a) the date on which
such securities are traded without an entitlement to such dividend or distribution or (b) where such securities trade on a due bill basis, the date on which such dividend or distribution is paid;
(qq) "Expiration Date" has the meaning as provided in clause (iv) of the definition of "Conversion Factor" above;
(rr) "Governing Body" means (i) with respect to a corporation or limited company, the board of directors of such corporation
or limited company, (ii) with respect to a limited liability company, the manager(s), director(s) or managing partner(s) of such limited liability company, (iii) with respect to a partnership, the board, committee or other body of each general
partner or managing partner of such partnership, respectively, that serves a similar function (or if any such general partner is itself a partnership, the board, committee or other body of such general or managing partner's general or managing
partner that serves a similar function), and (iv) with respect to any other Person, the body of such Person that serves a similar function, and in the case of each of (i) through (iv) includes any committee or other subdivision of such body and any
Person to whom such body has delegated any power or authority, including any officer or managing director;
(ss) "Interpretation
Act" means the Interpretation Act (British Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant to that Act;
(tt) "Last Reported Sale Price" means with respect to a security on a particular date, the market price of such security on such
date or, if such date is not a Trading Day, the most recent Trading Day. The market price for each such Trading Day shall be: (i) if such security is listed on a U.S. National Securities Exchange, the closing price per security (or, if no closing
price is reported, the average of the last quoted bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for such U.S. National Securities Exchange (or, if listed on more than one
U.S. National Securities Exchange, the U.S. National Securities Exchange with the greatest volume of trading by dollar value over the 12-month period preceding the date of the calculation); (ii) if such security is not listed on a U.S. National
Securities Exchange but is listed on the TSX, the U.S. dollar equivalent (calculated using the rate published by the Bank of Canada as of 4:30 p.m., Eastern Time, on such date) of the closing price per security (or, if no closing price is reported,
the average of the last quoted bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such day for the TSX; (iii) if such security is not listed or admitted to trading on any U.S. National
Securities Exchange or the TSX, the last quoted bid price on such day in the over-the-counter market on such day as reported by OTC Markets Group Inc. or a similar organization; or (iv) if such security is not listed or admitted to trading on any
U.S. National Securities Exchange or the TSX and such security is not quoted in the over-the-counter market, the average of the mid-point of the last quoted bid and ask prices on such day from each of at least three nationally recognized independent
investment banking firms selected by the Company for such purpose;
(uu) "Laws" means all federal, provincial, state, municipal, regional and local laws (including common law), by-laws,
statutes, rules, regulations, principles of law and equity, orders, rulings, certificates, ordinances, judgments, injunctions, determinations, awards, decrees, legally binding codes, policies or other requirements, whether domestic or foreign, and
the terms and conditions of any grant of approval, permission, authority or license of any governmental entity, and the term "applicable" with respect to such Laws and in a context that refers to one or more Persons, means such Laws as are binding
upon or applicable to such Person or its assets;
(vv) "legal personal representative" means the personal or other legal
representative of the shareholder;
(ww) "Liquidation Amount" has the meaning as provided in §25.25;
(xx) "Liquidation Call Consideration" has the meaning as provided in §25.28;
(yy) "Liquidation Call Right" has the meaning as provided in §25.28;
(zz) "Liquidation Date" has the meaning as provided in §25.25;
(aaa) "Liquidation Event" has the meaning as provided in §25.25;
(bbb) "Liquidation Reference Date" has the meaning as provided in §25.25;
(ccc) "Non-Affiliated Holders" means the holders of Class A Shares other than BIP-Affiliated Class A Shareholders;
(ddd) "Notice of Class A Redemption" means a Notice of Redemption substantially in the form set forth on Exhibit B
hereto;
(eee) "Notice of Class B Retraction" means a Notice of Retraction substantially in the form set forth on Exhibit C hereto;
(fff) "Notice of Class C Retraction" means a Notice of Retraction substantially in the form set forth on Exhibit D hereto;
(ggg) "Notice of Exchange" means a Notice of Exchange substantially in the form set forth on Exhibit A hereto (or notice of
the exercise of Exchange Rights in such other form as may be acceptable to the Company);
(hhh) "Open of Business" means
9:00 a.m., Eastern Time;
(iii) "Person" means any natural person, partnership, limited partnership, limited liability
partnership, joint venture, syndicate, sole proprietorship, company or corporation (with or without share capital), limited liability corporation, unlimited liability company, joint stock company, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative, governmental entity or other entity however designated or constituted and pronouns have a similarly extended meaning;
(jjj) "Preferred Shares" means the Class A Senior Preferred Shares and the Class B Junior Preferred Shares;
(kkk) "Record Date" means with respect to any dividend, distribution or other transaction or event in which the holders of BIP Units and/or Class A Shares have the right to receive any
cash, securities, assets or other property or in which BIP Units and/or Class A Shares are exchanged for or converted into any combination of securities, cash, assets or other property, the date fixed for determination of holders of BIP Units and/or
Class A Shares entitled to receive such cash, securities, assets or other property (whether such date is fixed by the board of directors or the BIP GP, as applicable, or a duly authorized committee thereof, or as determined pursuant to any statute,
constating document, contract or otherwise);
(lll) "Redemption Consideration" has the meaning as provided in
§25.21;
(mmm) "registered address" of a shareholder means the shareholder's address as recorded in the central
securities register;
(nnn) "Rights Agent" means Wilmington Trust, National Association or any successor thereto as rights
agent for the Secondary Exchange Amount;
(ooo) "Rights Agreement" means that certain Rights Agreement dated on or
about March 31, 2020 by and between BAM and the Rights Agent as it may be amended or modified from time to time in accordance with the terms thereof;
(ppp) "Secondary Exchange Amount" means, with respect to a Tendered Share, the BIP Units Amount for such Tendered Share or, at the election of BAM, the Cash Amount for such Tendered Share,
in each case, on the terms and subject to the conditions of the Rights Agreement;
(qqq) "Secondary Exchange Date" means, with respect to any Class A Share, the
date that is two (2) Business Days following the Specified Exchange Date or Specified Class A Redemption Date, as applicable, with respect to such Class A Share;
(rrr) "Secondary Exchange Right" has the meaning set forth in §25.16;
(sss) "share" means a share in the share structure of the Company;
(ttt) "special majority" means the number of votes described in §11.2 which is required to pass a special resolution;
(uuu) "Specified Class A Redemption Date" means, with respect to the Notice of Class A Redemption, the sixtieth (60th) day following delivery of such Notice of Class A Redemption to the
Class A Shareholder or such later day specified in such Notice of Class A Redemption;
(vvv) "Specified Class B Retraction
Date" means, with respect to each Notice of Class B Retraction, the thirtieth (30th) day following receipt of such Notice of Class B Retraction by the Company;
(www) "Specified Class C Retraction Date" means, with respect to each Notice of Class C Retraction, the thirtieth (30th) day following receipt of such Notice of Class C Retraction by the
Company;
(xxx) "Specified Exchange Date" means, with respect to each Notice of Exchange for which an Exchange Date has not
occurred prior thereto, the tenth (10th) Business Day following the receipt of such Notice of Exchange by the Transfer Agent;
(yyy) "Spin-off" means a payment by BIP of a distribution of shares of any class or series, or similar equity
interest, of or relating to a subsidiary or business unit of BIP, that are, or, when issued, will be, listed or admitted for trading on a U.S. National Securities Exchange or the TSX;
(zzz) "Tendered Class A Shares" has the meaning as provided in §25.11;
(aaaa) "Tendered Class B Shares" has the meaning as provided in §26.11;
(bbbb) "Tendered Class C Shares" has the meaning as provided in §27.8;
(cccc) "Tendered Shares" means the Tendered Class A Shares, Tendered Class B Shares or Tendered Class C Shares, as
applicable;
(dddd) "Tendering Class A Shareholder" has the meaning as provided in §25.11;
(eeee) "Tendering Class B Shareholder" has the meaning as provided in §26.11;
(ffff) "Tendering Class C Shareholder" has the meaning as provided in §27.8;
(gggg) "Trading Day" means a day on which (a) trading in the applicable securities generally occurs on a U.S. National Securities Exchange or, if the applicable securities are not then
listed on a U.S. National Securities Exchange, on the TSX or such other market on which the applicable securities are then traded and (b) a Last Reported Sale Price for the applicable securities is available on such securities exchange or market. If
the applicable securities are not so listed, or in the case of unlisted securities, so traded, "Trading Day" means a "Business Day";
(hhhh) "Transfer" means any sale, assignment, surrender, gift or transfer of ownership of, the granting or foreclosure of a
pledge, mortgage, charge, security interest, hypothecation or other encumbrance, whether voluntary, involuntary, by operation of law or otherwise, or the entry into of any contract, option or other arrangement or understanding with respect to the
foregoing;
(iiii) "Transfer Agent" means Computershare Investor Services Inc., and includes any person who becomes a
successor or replacement transfer agent is deemed to refer to all successors, including, without limitation, by operation of law of such transfer agent;
(jjjj) "TSX" means Toronto Stock Exchange;
(kkkk) "Unpaid
Dividends" has the meaning as provided in §25.3;
(llll) "U.S. National Securities Exchange" means an exchange
registered with the U.S. Securities and Exchange Commission under Section 6(a) of the Exchange Act on which the applicable securities are listed, or if the applicable securities are not listed on an exchange so registered with the U.S. Securities
and Exchange Commission, any other U.S. exchange, whether or not so registered, on which the applicable securities are listed;
(mmmm) "Valuation Date" means (i) the date of receipt by the Transfer Agent of a Notice of Exchange, or by the Company of a
Notice of Class B Retraction or Notice of Class C Retraction, as applicable, or, if such date is not a Trading Day, the first (1st) Trading Day thereafter; or (ii) the day immediately preceding the date the Company issues a Notice of Class A
Redemption, or, if such day is not a Business Day, the Trading Day immediately preceding such day; and
(nnnn) "Valuation
Period" means, with respect to any Spin-off, the ten (10) consecutive Trading Day period commencing on, and including, the Ex-Dividend Date of the Spin-off.
Act and Interpretation Act Definitions
Applicable
1.2 The definitions in the Act and the definitions and rules of construction in the Interpretation Act, with the necessary changes, so
far as applicable, and except as the context requires otherwise, apply to these Articles as if they were an enactment. If there is a conflict between a definition in the Act and a definition or rule in the Interpretation Act relating to a term used
in these Articles, the definition in the Act will prevail. If there is a conflict or inconsistency between these Articles and the Act, the Act will prevail.
Actions on Non-Business Days
1.3 Whenever any payment to be made or action to be taken hereunder is required to be made or taken on a day other than a Business Day, such payment shall
be made or action taken on the next following Business Day.
Currency
1.4 Except where otherwise expressly
provided herein, all amounts are stated in U.S. currency.
PART 2
SHARES AND SHARE CERTIFICATES
Authorized Share Structure
2.1 The authorized share structure of the Company consists of shares of the class or classes and series, if any, described in the Notice of Articles of the
Company.
Form of Share Certificate
2.2 Each share certificate issued by the Company must comply with, and be
signed as required by, the Act.
Shareholder Entitled to Certificate, Acknowledgment or Written Notice
2.3 Unless the shares of which the shareholder is the registered owner are uncertificated shares, each shareholder is entitled, without charge, to (a) one
share certificate representing the shares of each class or series of shares registered in the shareholder's name or (b) a non-transferable written acknowledgment of the shareholder's right to obtain such a share certificate, provided that in respect
of a share held jointly by several persons, the Company is not bound to issue more than one share certificate and delivery of a share certificate for a share to one of several joint shareholders or to one of the shareholders' duly authorized agents
will be sufficient delivery to all. If a shareholder is the registered owner of uncertificated shares, the Company must send to a holder of an uncertificated share a written notice containing the information required by the Act within a reasonable
time after the issue or transfer of such share.
Delivery by Mail
2.4 Any share certificate or
non-transferable written acknowledgment of a shareholder's right to obtain a share certificate may be sent to the shareholder by mail at the shareholder's registered address and neither the Company nor any director, officer or agent of the Company
is liable for any loss to the shareholder because the share certificate or acknowledgement is lost in the mail or stolen.
Replacement of Worn Out or Defaced Certificate or Acknowledgement
2.5 If a share certificate or a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate is worn out or defaced, the Company must, on production of the
share certificate or acknowledgment, as the case may be, and on such other terms, if any, as are deemed fit:
(a) cancel the share
certificate or acknowledgment; and
(b) issue a replacement share certificate or acknowledgment.
Replacement of Lost, Stolen or Destroyed Certificate or Acknowledgment
2.6 If a share certificate or a
non-transferable written acknowledgment of a shareholder's right to obtain a share certificate is lost, stolen or destroyed, the Company must issue a replacement share certificate or acknowledgment, as the case may be, to the person entitled to that
share certificate or acknowledgment, if it receives:
(a) proof satisfactory to it of the loss, theft or destruction; and
(b) any indemnity the directors consider adequate.
Splitting Share Certificates
2.7 If a shareholder surrenders a share certificate to the Company with a written request that the Company issue in the shareholder's name two or more
share certificates, each representing a specified number of shares and in the aggregate representing the same number of shares as the share certificate so surrendered, the Company must cancel the surrendered share certificate and issue replacement
share certificates in accordance with that request.
Certificate Fee
2.8 There must be paid to the Company,
in relation to the issue of any share certificate under §2.5, §2.6 or §2.7, the amount, if any, not exceeding the amount prescribed under the Act, determined by the directors.
Recognition of
Trusts
2.9 Except as required by law or statute or these Articles, no person will be recognized by the Company as holding any share upon any trust,
and the Company is not bound by or compelled in any way to recognize (even when having notice thereof) any equitable, contingent, future or partial interest in any share or fraction of a share or (except as required by law or statute or these
Articles or as ordered by a court of competent jurisdiction) any other rights in respect of any share except an absolute right to the entirety thereof in the shareholder.
PART 3
ISSUE OF
SHARES
Directors Authorized
3.1 Subject to the Act and the rights, if any, of the holders of issued
shares of the Company, the Company may allot, issue, sell or otherwise dispose of the unissued shares, and issued shares held by the Company, at the times, to the persons, including directors, in the manner, on the terms and conditions and for the
consideration (including any premium at which shares with par value may be issued) that the directors may determine. The issue price for a share with par value must be equal to or greater than the par value of the share.
Commissions and Discounts
3.2 The Company may at any time pay a reasonable commission or allow a reasonable
discount to any person in consideration of that person's purchase or agreement to purchase shares of the Company from the Company or any other person's procurement or agreement to procure purchasers for shares of the Company.
Brokerage
3.3 The Company may pay such brokerage fee or other consideration as may be lawful for or in
connection with the sale or placement of its securities.
Conditions of Issue
3.4 Except as provided
for by the Act, no share may be issued until it is fully paid. A share is fully paid when:
(a) consideration is provided to the
Company for the issue of the share by one or more of the following:
(i) past services performed for the Company;
(ii) property;
(iii) money; and
(b) the value of the consideration received by the Company equals or exceeds the issue price set for the share under §3.1.
Share Purchase Warrants and Rights
3.5 Subject to the Act and the rights if any, of the holders of issued shares
of the Company, the Company may issue share purchase warrants, options and rights upon such terms and conditions as the directors determine, which share purchase warrants, options and rights may be issued alone or in conjunction with debentures,
debenture stock, bonds, shares or any other securities issued or created by the Company from time to time.
PART 4
SHARE REGISTERS
Central Securities Register
4.1 As required by and subject to the Act, the Company must maintain a central securities register and may appoint an agent to maintain such register. The directors may appoint one or more agents,
including the agent appointed to keep the central securities register, as transfer agent for shares or any class or series of shares and the same or another agent as registrar for shares or such class or series of shares, as the case may be. The
directors may terminate such appointment of any agent at any time and may appoint another agent in its place. If the directors designate a location outside British Columbia as the location at which the company maintains its central securities
register, the central securities register must be available for inspection and copying in accordance with the Act at a location inside British Columbia by means of a computer terminal or other electronic technology.
PART 5
SHARE TRANSFERS
Registering Transfers
5.1 A
transfer of a share must not be registered unless the Company or the transfer agent or registrar for the class or series of shares to be transferred has received:
(a) except as exempted by the Act, a duly signed proper instrument of transfer in respect of the share;
(b) if a share certificate has been issued by the Company in respect of the share to be transferred, that share certificate;
(c) if a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate has been issued by the Company in respect of the share to be transferred, that
acknowledgment; and
(d) such other evidence, if any, as the Company or the transfer agent or registrar for the class or series of
share to be transferred may require to prove the title of the transferor or the transferor's right to transfer the share, the due signing of the instrument of transfer and the right of the transferee to have the transfer registered.
Form of Instrument of
Transfer
5.2 The instrument of transfer in respect of any share of the Company must be either in the form, if any, on the back of the Company's
share certificates of that class or series or in some other form that may be approved by the directors.
Transferor Remains Shareholder
5.3 Except to the extent that the Act otherwise provides, the transferor of a share is deemed to remain the holder of it until the name of the transferee is entered in a securities register of the
Company in respect of the transfer.
Signing of Instrument of Transfer
5.4 If a shareholder, or the
shareholder's duly authorized attorney, signs an instrument of transfer in respect of shares registered in the name of the shareholder, the signed instrument of transfer constitutes a complete and sufficient authority to the Company and its
directors, officers and agents to register the number of shares specified in the instrument of transfer or specified in any other manner, or, if no number is specified, all the shares represented by the share certificates or set out in the written
acknowledgments deposited with the instrument of transfer:
(a) in the name of the person named as transferee in that instrument
of transfer; or
(b) if no person is named as transferee in that instrument of transfer, in the name of the person on whose behalf
the instrument is deposited for the purpose of having the transfer registered.
Enquiry as to Title Not Required
5.5 Neither the Company nor any director, officer or agent of the Company is bound to inquire into the title of the person named in the instrument of
transfer as transferee or, if no person is named as transferee in the instrument of transfer, of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered or is liable for any claim related to
registering the transfer by the shareholder or by any intermediate owner or holder of the shares transferred, of any interest in such shares, of any share certificate representing such shares or of any written acknowledgment of a right to obtain a
share certificate for such shares.
Transfer Fee
5.6 There must be paid to the Company, in relation to the
registration of a transfer, the amount, if any, determined by the directors.
PART 6
TRANSMISSION OF SHARES
Legal Personal Representative Recognized on Death
6.1 In case of the death of a shareholder, the legal personal representative of the shareholder, or in the case of shares registered in the shareholder's
name and the name of another person in joint tenancy, the surviving joint holder, will be the only person recognized by the Company as having any title to the shareholder's interest in the shares. Before recognizing a person as a legal personal
representative of a shareholder, the Company shall receive the documentation required by the Act.
Rights of Legal Personal Representative
6.2 The legal personal representative of a shareholder has the same rights, privileges and obligations that attach to the shares held by the shareholder, including the right to transfer the shares
in accordance with these Articles, provided the documents required by the Act and the directors have been deposited with the Company. This §6.2 does not apply in the case of the death of a shareholder with respect to shares registered in the
name of the shareholder and the name of another person in joint tenancy.
PART 7
PURCHASE, REDEEM OR OTHERWISE ACQUIRE SHARES
Company Authorized to
Purchase, Redeem or Otherwise Acquire Shares
7.1 Subject to the special rights or restrictions attached to the shares of any class or series and
the Act, the Company may, if authorized by the directors, purchase or otherwise acquire any of its shares at the price and upon the terms determined by the directors.
Sale and Voting of Purchased, Redeemed or
Otherwise Acquired Shares
7.2 If the Company retains a share redeemed, purchased or otherwise acquired by it, the Company may sell, gift, cancel or
otherwise dispose of the share, but, while such share is held by the Company, it:
(a) is not entitled to vote the share at a
meeting of its shareholders;
(b) must not pay a dividend in respect of the share; and
(c) must not make any other distribution in respect of the share.
Company Entitled to
Purchase, Redeem or Otherwise Acquire Share Fractions
7.3 The Company may, without prior notice to the holders, purchase, redeem or otherwise
acquire for fair value any and all outstanding share fractions of any class or kind of shares in its authorized share structure as may exist at any time and from time to time. Upon the Company delivering the purchase funds and confirmation of
purchase or redemption of the share fractions to the holders' registered or last known address, or if the Company has a transfer agent then to such agent for the benefit of and forwarding to such holders, the Company shall thereupon amend its
central securities register to reflect the purchase or redemption of such share fractions and if the Company has a transfer agent, shall direct the transfer agent to amend the central securities register accordingly.
PART
8
BORROWING POWERS
8.1 The Company, if authorized by the directors, may:
(a) borrow money in the manner and amount, on the security, from the sources and on the terms and conditions that they consider appropriate;
(b) issue bonds, debentures and other debt obligations either outright or as security for any liability or obligation of the Company
or any other person and at such discounts or premiums and on such other terms as the directors consider appropriate;
(c) guarantee the repayment of money by any other person or the performance of any obligation of any other person; and
(d) mortgage, charge, whether by way of specific or floating charge, grant a security interest in, or give other security on, the
whole or any part of the present and future assets and undertaking of the Company.
PART 9
ALTERATIONS
Alteration of Authorized Share Structure
9.1 Subject to §9.2 and the Act, the Company may by ordinary resolution (or a resolution of the directors in the case of §9.1(c) or
§9.1(f)):
(a) create one or more classes of shares or, if none of the shares of a class of shares are allotted or issued,
eliminate that class of shares;
(b) increase, reduce or eliminate the maximum number of shares that the Company is authorized to
issue out of any class of shares or establish a maximum number of shares that the Company is authorized to issue out of any class of shares for which no maximum is established;
(c)
subdivide or consolidate all or any of its unissued, or fully paid issued, shares;
(d) if the Company is authorized to issue shares of a class of shares with par
value:
(i) decrease the par value of those shares; or
(ii) if none of the shares of that class of shares are allotted or issued, increase the par value of those shares;
(e) change all or any of its unissued, or fully paid issued, shares with par value into shares without par value or any of its unissued shares without par value into shares with par value;
(f) alter the identifying name of any of its shares; or
(g) otherwise alter its shares or authorized share structure when required or permitted to do so by the Act where it does not specify by a special resolution;
and, if applicable, alter its Notice of Articles and Articles accordingly.
Special Rights or Restrictions
9.2 Subject to the Act and in particular those provisions of the Act relating to the rights of holders of outstanding shares to vote if their rights are prejudiced or interfered with, the Company
may by ordinary resolution:
(a) create special rights or restrictions for, and attach those special rights or restrictions
to, the shares of any class of shares, whether or not any or all of those shares have been issued; or
(b) vary or delete any
special rights or restrictions attached to the shares of any class of shares, whether or not any or all of those shares have been issued,
and alter its Notice of Articles and Articles accordingly.
Change of Name
9.3 The Company may by directors resolution authorize an alteration of its Notice of Articles in
order to change its name or adopt or change any translation of that name.
Other Alterations
9.4 If the Act
does not specify the type of resolution and these Articles do not specify another type of resolution, the Company may by ordinary resolution alter these Articles.
PART
10
MEETINGS OF SHAREHOLDERS
Annual General Meetings
10.1 Unless an annual general
meeting is deferred or waived in accordance with the Act, the Company must hold its first annual general meeting within 18 months after the date on which it was incorporated or otherwise recognized, and after that must hold an annual general meeting
at least once in each calendar year and not more than 15 months after the last annual reference date at such time and place as may be determined by the directors.
Resolution Instead of Annual General
Meeting
10.2 If all the shareholders who are entitled to vote at an annual general meeting consent in writing by a unanimous resolution to all of
the business that is required to be transacted at that annual general meeting, the annual general meeting is deemed to have been held on the date of the unanimous resolution. The shareholders must, in any unanimous resolution passed under this
§10.2, select as the Company's annual reference date a date that would be appropriate for the holding of the applicable annual general meeting. A unanimous resolution passed in writing under this §10.2 may be by signed document, fax, email
or any other method of transmitting legibly recorded messages. Any electronic signature on a unanimous resolution, whether digital or encrypted, shall be deemed to have the same force and effect as a manual signature. A unanimous resolution in
writing may be in two or more counterparts which together are deemed to constitute one unanimous resolution in writing.
Calling of Meetings of Shareholders
10.3 The directors may, at any time, call a meeting of shareholders.
Notice for Meetings of Shareholders
10.4 The Company must send notice of the date, time and location of any meeting of shareholders (including, without limitation, any notice specifying the intention to propose a resolution as a
special resolution and any notice to consider approving a continuation into a foreign jurisdiction, an arrangement or the adoption of an amalgamation agreement, and any notice of a general meeting, class meeting or series meeting), in the manner
provided in these Articles, or in such other manner, if any, as may be prescribed by ordinary resolution (whether previous notice of the resolution has been given or not), to each shareholder entitled to attend the meeting, to each director and to
the auditor of the Company, unless these Articles otherwise provide, at least the following number of days before the meeting:
(a) if the Company is a public company, 21 days;
(b) otherwise, 10 days.
Record Date for Notice
10.5 The directors may set a date as
the record date for the purpose of determining shareholders entitled to notice of any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting
requisitioned by shareholders under the Act, by more than four months. The record date must not precede the date on which the meeting is held by fewer than:
(a) if the Company is a public company, 21 days;
(b) otherwise, 10
days.
If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
Record Date for Voting
10.6 The directors may set a date as the record date for the purpose of determining
shareholders entitled to vote at any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Act, by
more than four months. If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
Failure to Give Notice and Waiver of Notice
10.7 The accidental omission to send notice of any meeting of
shareholders to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceedings at that meeting. Any person entitled to notice of a meeting of shareholders may, in writing or otherwise, waive that
entitlement or may agree to reduce the period of that notice. Attendance of a person at a meeting of shareholders is a waiver of entitlement to notice of the meeting unless that person attends the meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not lawfully called.
Notice of Special Business at Meetings of Shareholders
10.8 If a meeting of shareholders is to consider special business within the meaning of §11.1, the notice of meeting must:
(a) state the general nature of the special business; and
(b) if the
special business includes considering, approving, ratifying, adopting or authorizing any document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy of the document will be
available for inspection by shareholders:
(i) at the Company's records office, or at such other reasonably accessible location in
British Columbia as is specified in the notice; and
(ii) during statutory business hours on any one or more specified days before the day set for the holding of the meeting.
Place of Meetings
10.9 In addition to any location in British Columbia, any general meeting may be held in any
location outside British Columbia approved by a resolution of the directors, or if so approved by a resolution of the directors, any general meeting may be held entirely by means of an electronic or other communication facility that permits all
persons participating in the meeting to communicate adequately with each other to the extent permitted by the Act.
PART 11
PROCEEDINGS AT MEETINGS OF SHAREHOLDERS
Special Business
11.1 At a meeting of shareholders, the following business is special business:
(a) at a meeting of shareholders that is not an annual general meeting, all business is special business except business relating to
the conduct of or voting at the meeting;
(b) at an annual general meeting, all business is special business except for the
following:
(i) business relating to the conduct of or voting at the meeting;
(ii) consideration of any financial statements of the Company presented to the meeting;
(iii) consideration of any reports of the directors or auditor;
(iv) the setting or changing of the number of directors;
(v) the election
or appointment of directors;
(vi) the appointment of an auditor;
(vii) the setting of the remuneration of an auditor;
(viii) business
arising out of a report of the directors not requiring the passing of a special resolution;
(ix) any other business which, under
these Articles or the Act, may be transacted at a meeting of shareholders without prior notice of the business being given to the shareholders.
Special Resolutions
11.2 The
number of votes required for the Company to pass a special resolution at a general meeting of shareholders is two-thirds of the votes cast on the resolution.
Ordinary Resolutions
11.3 The number of votes required for the Company to pass an ordinary resolution at a general meeting of shareholders is a majority of the votes cast on
the resolution.
Quorum
11.4 Subject to the special rights or restrictions attached to the shares of any
class or series of shares, and to §11.6, the quorum for the transaction of business at a meeting of shareholders is at least two shareholders who, whether present in person or represented by proxy, in the aggregate, hold at least 25% of the
votes attached to the shares entitled to be voted at the meeting.
11.5 Where a separate vote by a class or series or classes or series is required,
the quorum for that matter is at least two shareholders who, whether present in person or represented by proxy, in the aggregate, hold at least 25% of the votes attached to the shares of such class or series or classes or series entitled to vote on
that matter.
One Shareholder May Constitute Quorum
11.6 If there is only one shareholder entitled to vote
at a meeting of shareholders:
(a) the quorum is one person who is, or who represents by proxy, that shareholder, and
(b) that shareholder, present in person or by proxy, may constitute the meeting.
Persons
Entitled to Attend Meeting
11.7 In addition to those persons who are entitled to vote at a meeting of shareholders, the only other persons
entitled to be present at the meeting are the directors, the president (if any), the secretary (if any), the assistant secretary (if any), any lawyer for the Company, the auditor of the Company, any persons invited to be present at the meeting by
the directors or by the chair of the meeting and any persons entitled or required under the Act or these Articles to be present at the meeting; but if any of those persons does attend the meeting, that person is not to be counted in the quorum and
is not entitled to vote at the meeting unless that person is a shareholder or proxy holder entitled to vote at the meeting.
Requirement of Quorum
11.8 No business, other than the election of a chair of the meeting and the adjournment of the meeting, may be transacted at any meeting of shareholders unless a quorum of shareholders entitled
to vote is present at the commencement of the meeting, but such quorum need not be present throughout the meeting.
Lack of Quorum
11.9 If, within
one-half hour from the time set for the holding of a meeting of shareholders, a quorum is not present:
(a) in the case of a
general meeting requisitioned by shareholders, the meeting is dissolved, and
(b) in the case of any other meeting of
shareholders, the meeting stands adjourned to the same day in the next week at the same time and place specified in the notice calling the meeting unless otherwise determined by an ordinary resolutions of those shareholders present and for which
notification is provided to all shareholders entitled to attend such meeting.
Lack of Quorum at Succeeding Meeting
11.10 If, at the meeting to which the meeting referred to in §11.9(b) was adjourned, a quorum is not present within one-half hour from the time set
for the holding of the meeting, the person or persons present and being, or representing by proxy one or more shareholders, entitled to attend and vote at the meeting shall be deemed to constitute a quorum.
Chair
11.11 The following individual is entitled to preside as chair at a meeting of shareholders:
(a) the chair of the board, if any; or
(b) if the chair of the board is absent or unwilling to act as chair of the meeting, the president, if any.
Selection of Alternate Chair
11.12 If, at any meeting of shareholders, there is no chair of the board or president present within 15 minutes after the time set for holding the meeting,
or if the chair of the board and the president are unwilling to act as chair of the meeting, or if the chair of the board and the president have advised the secretary, if any, or any director present at the meeting, that they will not be present at
the meeting, the directors present may choose either one of their number or the lawyer of the Company to be chair of the meeting. If all of the directors present decline to take the chair or fail to so choose or if no director is present or the
lawyer of the Company declines to take the chair, the shareholders entitled to vote at the meeting who are present in person or by proxy may choose any person present at the meeting to chair the meeting.
Adjournments
11.13 The chair of a meeting of shareholders may, and if so directed by the meeting must, adjourn
the meeting from time to time and from place to place, but no business may be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
Notice of Adjourned
Meeting
11.14 It is not necessary to give any notice of an adjourned meeting of shareholders or of the business to be transacted at an adjourned
meeting of shareholders except that, when a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given as in the case of the original meeting.
Decisions by Show of Hands or
Poll
11.15 Subject to the Act, every motion put to a vote at a meeting of shareholders will be decided on a show of hands unless a poll, before or
on the declaration of the result of the vote by show of hands, is directed by the chair or demanded by any shareholder entitled to vote who is present in person or by proxy.
Declaration of Result
11.16 The chair of a meeting of shareholders must declare to the meeting the decision on every question in accordance with the result of the show of hands
or the poll, as the case may be, and that decision must be entered in the minutes of the meeting. A declaration of the chair that a resolution is carried by the necessary majority or is defeated is, unless a poll is directed by the chair or demanded
under §11.15, conclusive evidence without proof of the number or proportion of the votes recorded in favour of or against the resolution.
Motion Need Not be Seconded
11.17 No motion proposed at a meeting of shareholders need be seconded unless the chair of the meeting rules otherwise, and the chair of any meeting of
shareholders is entitled to propose or second a motion.
Casting Vote
11.18 In case of an equality of votes,
the chair of a meeting of shareholders does not, either on a show of hands or on a poll, have a second or casting vote in addition to the vote or votes to which the chair may be entitled as a shareholder.
Manner of Taking Poll
11.19 Subject to §11.20, if a poll is duly demanded at a meeting of shareholders:
(a) the poll must be taken:
(i) at the meeting, or within seven days after the date of the meeting, as the chair of the meeting directs; and
(ii) in the manner, at the time and at the place that the chair of the meeting directs;
(b) the result of the poll is deemed to be the decision of the meeting at which the poll is demanded; and
(c) the demand for the poll may be withdrawn by the person who demanded it.
Demand for Poll on Adjournment
11.20 A poll demanded at a meeting of shareholders on a question of adjournment must be taken immediately at the meeting.
Chair Must Resolve Dispute
11.21 In the case of any dispute as to the admission or rejection of a vote given on a poll, the chair of the meeting must determine the dispute, and the
determination of the chair made in good faith is final and conclusive.
Casting of Votes
11.22 On a poll, a
shareholder entitled to more than one vote need not cast all the votes in the same way.
No Demand for Poll on Election of Chair
11.23 No poll may be demanded in respect of the vote by which a chair of a meeting of shareholders is elected.
Demand for Poll Not to Prevent Continuance of
Meeting
11.24 The demand for a poll at a meeting of shareholders does not, unless the chair of the meeting so rules, prevent the continuation of a
meeting for the transaction of any business other than the question on which a poll has been demanded.
Retention of Ballots and Proxies
11.25 The Company must, for at least three months after a meeting of shareholders, keep each ballot cast on a poll and each proxy voted at the meeting, and, during that period, make them available
for inspection during normal business hours by any shareholder or proxy holder entitled to vote at the meeting. At the end of such three month period, the Company may destroy such ballots and proxies.
PART
12
VOTES OF SHAREHOLDERS
Number of Votes by Shareholder or by Shares
12.1 Subject to any
special rights or restrictions attached to any shares and to the restrictions imposed on joint shareholders under §12.3:
(a) on a vote by show of hands, every person present who
is a shareholder or proxy holder and entitled to vote on the matter has one vote; and
(b) on a poll, every shareholder entitled
to vote on the matter has one vote in respect of each share entitled to be voted on the matter and held by that shareholder and may exercise that vote either in person or by proxy.
Votes of Persons in
Representative Capacity
12.2 A person who is not a shareholder may vote at a meeting of shareholders, whether on a show of hands or on a poll,
and may appoint a proxy holder to act at the meeting, if, before doing so, the person satisfies the chair of the meeting, or the directors, that the person is a legal personal representative or a trustee in bankruptcy for a shareholder who is
entitled to vote at the meeting.
Votes by Joint Holders
12.3 If there are joint shareholders registered in
respect of any share:
(a) any one of the joint shareholders may vote at any meeting of shareholders, personally or by proxy, in
respect of the share as if that joint shareholder were solely entitled to it; or
(b) if more than one of the joint shareholders
is present at any meeting of shareholders, personally or by proxy, and more than one of them votes in respect of that share, then only the vote of the joint shareholder present whose name stands first on the central securities register in respect of
the share will be counted.
Legal Personal Representatives as Joint Shareholders
12.4 Two or more legal
personal representatives of a shareholder in whose sole name any share is registered are, for the purposes of §12.3, deemed to be joint shareholders registered in respect of that share.
Representative of a
Corporate Shareholder
12.5 If a corporation, that is not a subsidiary of the Company, is a shareholder, that corporation may appoint a person to
act as its representative at any meeting of shareholders of the Company, and:
(a) for that purpose, the instrument appointing a
representative must be received:
(i) at the registered office of the Company or at any other place specified, in the notice calling
the meeting, for the receipt of proxies, at least the number of Business Days specified in the notice for the receipt of proxies, or if no number of days is specified, two Business Days before the day set for the holding of the meeting or any
adjourned meeting; or
(ii) at the meeting or any adjourned meeting, by the chair of the meeting or adjourned meeting or by a person designated by the chair of
the meeting or adjourned meeting;
(b) if a representative is appointed under this §12.5:
(i) the representative is entitled to exercise in respect of and at that meeting the same rights on behalf of the corporation that the
representative represents as that corporation could exercise if it were a shareholder who is an individual, including, without limitation, the right to appoint a proxy holder; and
(ii) the representative, if present at the meeting, is to be counted for the purpose of forming a quorum and is deemed to be a shareholder present in person at the meeting.
Evidence of the appointment of any such representative may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages.
Proxy
Provisions Do Not Apply to All Companies
12.6 If and for so long as the Company is a public company or a pre-existing reporting company which has
the Statutory Reporting Company Provisions as part of its Articles or to which the Statutory Reporting Company Provisions apply, then §12.7 to §12.15 are not mandatory, however the directors of the Company are authorized to apply all or
part of such sections or to adopt alternative procedures for proxy form, deposit and revocation procedures to the extent that the directors deem necessary in order to comply with securities laws applicable to the Company.
Appointment of Proxy Holders
12.7 Every shareholder of the Company, including a corporation that is a
shareholder but not a subsidiary of the Company, entitled to vote at a meeting of shareholders may, by proxy, appoint one or more (but not more than five) proxy holders to attend and act at the meeting in the manner, to the extent and with the
powers conferred by the proxy.
Alternate Proxy Holders
12.8 A shareholder may appoint one or more
alternate proxy holders to act in the place of an absent proxy holder.
Proxy Holder Need Not Be Shareholder
12.9 A proxy holder need not be a shareholder of the Company.
Deposit of Proxy
12.10
A proxy for a meeting of shareholders must:
(a) be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the
receipt of proxies, at least the number of Business Days specified in the notice, or if no number of days is specified, two Business Days before the day set for the holding of the meeting or any adjourned meeting; or
(b) unless the notice provides otherwise, be received, at the meeting or any adjourned meeting, by the chair of the meeting or
adjourned meeting or by a person designated by the chair of the meeting or adjourned meeting.
A proxy may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded
messages, including through Internet or telephone voting or by email, if permitted by the notice calling the meeting or the information circular for the meeting.
Validity of Proxy Vote
12.11 A vote given in accordance with the terms of a proxy is valid notwithstanding the death or incapacity of the shareholder giving the proxy and despite
the revocation of the proxy or the revocation of the authority under which the proxy is given, unless notice in writing of that death, incapacity or revocation is received:
(a) at the registered office of the Company, at any time up to and including the last Business Day before the day set for the holding of the meeting or any adjourned meeting at which the proxy
is to be used; or
(b) at the meeting or any adjourned meeting by the chair of the meeting or adjourned meeting, before any vote
in respect of which the proxy has been given has been taken.
Form of Proxy
12.12 A proxy, whether for a
specified meeting or otherwise, must be either in the following form or in any other form approved by the directors or the chair of the meeting:
[name of company]
(the "Company")
The undersigned, being a shareholder of the Company, hereby appoints [name] or, failing that person, [name], as proxy holder for the undersigned to attend, act and vote for and on behalf of the
undersigned at the meeting of shareholders of the Company to be held on [month, day, year] and at any adjournment of that meeting.
Number of shares in respect of which this proxy is given (if no
number is specified, then this proxy is given in respect of all shares registered in the name of the undersigned):
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Signed [month, day, year]
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[Signature of shareholder]
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[Name of shareholder—printed]
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Revocation of Proxy
12.13 Subject to §12.14, every proxy may be revoked by an instrument in writing that is received:
(a) at the registered office of the Company at any time up to and including the last Business Day before the day set for the holding of the meeting or any adjourned meeting at which the proxy
is to be used; or
(b) at the meeting or any adjourned meeting, by the chair of the meeting or adjourned meeting, before any vote
in respect of which the proxy has been given has been taken.
Revocation of Proxy Must Be Signed
12.14 An
instrument referred to in §12.13 must be signed as follows:
(a) if the shareholder for whom the proxy holder is appointed is
an individual, the instrument must be signed by the shareholder or the shareholder's legal personal representative or trustee in bankruptcy;
(b) if the shareholder for whom the proxy holder is appointed is a corporation, the instrument must be signed by the corporation or
by a representative appointed for the corporation under §12.5.
Production of Evidence of Authority to Vote
12.15 The chair of any meeting of shareholders may, but
need not, inquire into the authority of any person to vote at the meeting and may, but need not, demand from that person production of evidence as to the existence of the authority to vote.
PART
13
DIRECTORS
First Directors; Number of Directors
13.1 The first directors are the
persons designated as directors of the Company in the Notice of Articles that applies to the Company when it is recognized under the Act. The number of directors, excluding additional directors appointed under §14.8, is set at:
(a) subject to §(b) and §(c), the number of directors that is equal to the number of the Company's first directors;
(b) if the Company is a public company, the greater of three and the most recently set of:
(i) the number of directors set by a resolution of the directors (whether or not previous notice of the resolution was given); and
(ii) the number of directors in office pursuant to §14.4;
(c) if the Company is not a public company, the most recently set of:
(i) the number of directors set by a resolution of the directors (whether or not previous notice of the resolution was given); and
(ii) the number of directors in office pursuant to §14.4.
Change in Number of
Directors
13.2 If the number of directors is set under §13.1(b)(i) or §13.1(c)(i), subject to any restrictions in the Act and to
§14.8, the board of directors may appoint the directors needed to fill any vacancies in the board of directors up to that number.
Directors' Acts Valid Despite Vacancy
13.3 An act or proceeding of the directors is not invalid merely because fewer than the number of directors set or otherwise required under these
Articles is in office.
Qualifications of Directors
13.4 A director is not required to hold a share in the share structure of the
Company as qualification for his or her office but must be qualified as required by the Act to become, act or continue to act as a director.
Remuneration of Directors
13.5 The directors are entitled to the remuneration for acting as directors, if any, as the directors may from time to time determine. If the directors
so decide, the remuneration of the directors, if any, will be determined by the shareholders.
Reimbursement of Expenses of Directors
13.6 The Company must reimburse each director for the reasonable expenses that he or she may incur in and about the business of the Company.
Special
Remuneration for Directors
13.7 If any director performs any professional or other services for the Company that in the opinion of the directors
are outside the ordinary duties of a director, he or she may be paid remuneration fixed by the directors, or at the option of the directors, fixed by ordinary resolution, and such remuneration will be in addition to any other remuneration that he or
she may be entitled to receive.
Gratuity, Pension or Allowance on Retirement of Director
13.8 Unless
otherwise determined by ordinary resolution, the directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any director who has held any salaried office or place of profit with the Company or to his or her spouse
or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.
PART 14
ELECTION AND REMOVAL OF DIRECTORS
Election at Annual General Meeting
14.1 At every annual general meeting and in every unanimous resolution
contemplated by §10.2:
(a) the shareholders entitled to vote at the annual general meeting for the election of directors
must elect, or in the unanimous resolution appoint, a board of directors consisting of the number of directors for the time being set under these Articles; and
(b) all the directors cease to hold office immediately before the election or appointment of directors under §(a), but are eligible for re-election or re-appointment.
Consent to be a
Director
14.2 No election, appointment or designation of an individual as a director is valid unless:
(a) that individual consents to be a director in the manner provided for in the Act;
(b) that individual is elected or appointed at a meeting at which the individual is present and the individual does not refuse, at
the meeting, to be a director; or
(c) with respect to first directors, the designation is otherwise valid under the Act.
Failure to Elect or Appoint Directors
14.3 If:
(a) the Company fails to hold an annual general meeting, and all the shareholders who are entitled to vote at an annual general meeting fail to pass the unanimous resolution contemplated by
§10.2, on or before the date by which the annual general meeting is required to be held under the Act; or
(b) the
shareholders fail, at the annual general meeting or in the unanimous resolution contemplated by §10.2, to elect or appoint any directors;
then each director then in office continues to hold office until the
earlier of:
(c) when his or her successor is elected or appointed; and
(d) when he or she otherwise ceases to hold office under the Act or these Articles.
Places of Retiring Directors Not Filled
14.4 If, at any meeting of shareholders at which there should be an election of directors, the places of any of the retiring directors are not filled by
that election, those retiring directors who are not re-elected and who are asked by the newly elected directors to continue in office will, if willing to do so, continue in office to complete the number of directors for the time being set pursuant
to these Articles but their term of office shall expire no later than the date on which new directors are elected at a meeting of shareholders convened for that purpose. If any such election or continuance of directors does not result in the
election or continuance of the number of directors for the time being set pursuant to these Articles, the number of directors of the Company is deemed to be set at the number of directors actually elected or continued in office.
Directors May Fill Casual Vacancies
14.5 Any casual vacancy occurring in the board of directors may be filled
by the directors.
Remaining Directors Power to Act
14.6 The directors may act notwithstanding any vacancy in the board of
directors, but if the Company has fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the directors may only act for the purpose of appointing directors up to that number or of calling a meeting of
shareholders for the purpose of filling any vacancies on the board of directors or, subject to the Act, for any other purpose.
Shareholders May Fill Vacancies
14.7 If the Company has no directors or fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the shareholders may elect or appoint directors to
fill any vacancies on the board of directors.
Additional Directors
14.8 Notwithstanding §13.1,
§13.2, and §14.1, between annual general meetings or by unanimous resolutions contemplated by §10.2, the directors may appoint one or more additional directors but the number of additional directors appointed under this §14.8
must not at any time exceed one-third of the number of the current directors who were elected or appointed as directors other than under this §14.8. Any director so appointed ceases to hold office immediately before the next election or
appointment of directors under §14.1(a), but is eligible for re-election or re-appointment.
Ceasing to be a Director
14.9 A director ceases to be a director when:
(a) the term of office of the
director expires;
(b) the director dies;
(c) the director resigns as a director by notice in writing provided to the Company or a lawyer for the Company; or
(d) the director is removed from office pursuant to §14.10 or §14.11.
Removal of Director by Shareholders
14.10 The Company may remove any director before the expiration of his or her term of office by special resolution. In that event, the shareholders may
elect, or appoint by ordinary resolution, a director to fill the resulting vacancy. If the shareholders do not elect or appoint a director to fill the resulting vacancy contemporaneously with the removal, then the directors may appoint or the
shareholders may elect, or appoint by ordinary resolution, a director to fill that vacancy.
Removal of Director by Directors
14.11 The directors may remove
any director before the expiration of his or her term of office if the director is convicted of an indictable offence, or if the director ceases to be qualified to act as a director of a company and does not promptly resign, and the directors may
appoint a director to fill the resulting vacancy.
Nomination of Directors
14.12
(a) Subject only to the Act, only persons who are nominated in accordance with the following procedures shall be eligible for
election as directors of the Company. Nominations of persons for election to the board may be made at any annual meeting of shareholders, or at any special meeting of shareholders (but only if the election of directors is a matter specified in the
notice of meeting given by or at the direction of the person calling such special meeting):
(i) by or at the direction of the board or an authorized officer of the Company, including
pursuant to a notice of meeting;
(ii) by or at the direction or request of one or more
shareholders pursuant to a proposal made in accordance with the provisions of the Act or a requisition of the shareholders made in accordance with the provisions of the Act; or
(iii) by any person (a "Nominating Shareholder") (A) who, at the close of business on
the date of the giving of the notice provided for below in this §14.12 and on the record date for notice of such meeting, is entered in the securities register as a holder of one or more shares carrying the right to vote at such meeting or who
beneficially owns shares that are entitled to be voted at such meeting and (B) who complies with the notice procedures set forth below in this §14.12.
(b) In addition to any other applicable requirements, for a nomination to be made by a Nominating Shareholder, such person must be given
(i) timely notice thereof in proper written form to an officer of the Company of the Company at
the principal executive offices of the Company in accordance with this §14.12 and
(ii) the representation and agreement with respect to each candidate for nomination as required
by, and within the time period specified in §14.12(c).
(c) To be timely under §14.12(b)(i), a Nominating Shareholder's
notice to an officer of the Company, being either the Chief Executive Officer, the Chief Financial Officer, or the Corporate Secretary (singularly, "an officer of the Company"), must be made:
(i) in the case of an annual meeting of shareholders, not less than 40 days prior to the date of
the annual meeting of shareholders; provided, however, that in the event that the annual meeting of shareholders is called for a date that is less than 50 days after the date (the "Notice Date") on which the first public announcement of the
date of the annual meeting was made, notice by the Nominating Shareholder may be made not later than the tenth (10th) day following the Notice Date; and
(ii) in the case of a special meeting (which is not also an annual meeting) of shareholders called for the purpose of electing directors (whether or not called for other
purposes), not later than the fifteenth (15th) day following the day on which the first public announcement of the date of the special meeting of shareholders was made.
(iii) Notwithstanding the foregoing, the board may, in its sole discretion, waive any
requirement in this §14.12(c).
(d) To be in proper written form, a Nominating Shareholder's notice to an officer of the
Company, under §14.12(b) must set forth:
(i) as to each person whom the Nominating
Shareholder proposes to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares in the
capital of the Company which are controlled or which are owned beneficially or of record by the person as of the record date for the Meeting of Shareholders (if such date shall then have been made publicly available and shall have occurred) and as
of the date of such notice, (D) a statement as to whether such person would be "independent" of the Company (within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 - Audit Committees of the Canadian Securities
Administrators, as such provisions may be amended from time to time) if elected as a director at such meeting and the reasons and basis for such determination and (E) any other information relating to the person that would be required to be
disclosed in a dissident's proxy circular in connection with solicitations of proxies for election of directors pursuant to the Act and Applicable Securities Laws; and
(ii) as to the Nominating Shareholder giving the notice, (A) any information relating to such Nominating Shareholder that would be required to be made in a dissident's proxy
circular in connection with solicitations of proxies for election of directors pursuant to the Act and Applicable Securities Laws, and (B) the class or series and number of shares in the capital of the Company which are controlled or which are owned
beneficially or of record by the Nominating Shareholder as of the record date for the Meeting of Shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice.
(e) No person shall be eligible for election as a director of the Company unless nominated in accordance with the provisions of this §14.12; provided, however, that nothing in this
§14.12 shall be deemed to preclude discussion by a shareholder (as distinct from nominating directors) at a meeting of shareholders of any matter in respect of which it would have been entitled to submit a proposal pursuant to the provisions of
the Act. The chair of the meeting shall have the power and duty to determine whether a nomination was made in accordance with the procedures set forth in the foregoing provisions and, if any proposed nomination is not in compliance with such
foregoing provisions, to declare that such defective nomination shall be disregarded.
(f) For purposes of this §14.12:
(i) "Applicable Securities Laws" means the Securities Act (British Columbia) and
the equivalent legislation in the other provinces and in the territories of Canada, as amended from time to time, the rules, regulations and forms made or promulgated under any such statute and the published national instruments, multilateral
instruments, policies, bulletins and notices of the securities commissions and similar regulatory authorities of each of the applicable provinces and territories of Canada;
(ii) "Associate", when used to indicate a relationship with a specified person, shall mean
(A) any corporation or trust of which such person owns beneficially, directly or indirectly, voting securities carrying more than 10% of the voting rights attached to all voting securities of such corporation or trust for the time being outstanding,
(B) any partner of that person, (C) any trust or estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar capacity, (D) a spouse of such specified person, (E) any person of either
sex with whom such specified person is living in conjugal relationship outside marriage or (F) any relative of such specified person or of a person mentioned in clauses (D) or (E) of this definition if that relative has the same residence as the
specified person;
(iii) "Derivatives Contract" shall mean a contract between two
parties (the "Receiving Party" and the "Counterparty") that is designed to expose the Receiving Party to economic benefits and risks that correspond substantially to the ownership by the Receiving Party of a number of shares in the capital of the
Company or securities convertible into such shares specified or referenced in such contract (the number corresponding to such economic benefits and risks, the "Notional Securities"), regardless of whether obligations under such contract are required
or permitted to be settled through the delivery of cash, shares in the capital of the Company or securities convertible into such shares or other property, without regard to any short position under the same or any other Derivatives Contract. For
the avoidance of doubt, interests in broad-based index options, broad-based index futures and broad-based publicly traded market baskets of stocks approved for trading by the appropriate governmental authority shall not be deemed to be Derivatives
Contracts;
(iv) "Meeting of Shareholders" shall mean such annual shareholders meeting or special
shareholders meeting, whether general or not, at which one or more persons are nominated for election to the board by a Nominating Shareholder;
(v) "owned beneficially" or "owns beneficially" means, in connection with the ownership of shares in the capital of the Company by a person, (A) any such shares
as to which such person or any of such person's affiliates or Associates owns at law or in equity, or has the right to acquire or become the owner at law or in equity, where such right is exercisable immediately or after the passage of time and
whether or not on condition or the happening of any contingency or the making of any payment, upon the exercise of any conversion right, exchange right or purchase right attaching to any securities, or pursuant to any agreement, arrangement, pledge
or understanding whether or not in writing; (B) any such shares as to which such person or any of such person's affiliates or Associates has the right to vote, or the right to direct the voting, where such right is exercisable immediately or after
the passage of time and whether or not on condition or the happening of any contingency or the making of any payment, pursuant to any agreement, arrangement, pledge or understanding whether or not in writing; (C) any such shares which are
beneficially owned, directly or indirectly, by a Counterparty (or any of such Counterparty's affiliates or Associates) under any Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract)
to which such person or any of such person's affiliates or Associates is a Receiving Party; provided, however that the number of shares that a person owns beneficially pursuant to this clause (C) in connection with a particular Derivatives Contract
shall not exceed the number of Notional Securities with respect to such Derivatives Contract; provided, further, that the number of securities owned beneficially by each Counterparty (including their respective affiliates and Associates) under a
Derivatives Contract shall for purposes of this clause be deemed to include all securities that are owned beneficially, directly or indirectly, by any other Counterparty (or any of such other Counterparty's affiliates or Associates) under any
Derivatives Contract to which such first Counterparty (or any of such first Counterparty's affiliates or Associates) is a Receiving Party and this proviso shall be applied to successive Counterparties as appropriate; and (D) any such shares which
are owned beneficially within the meaning of this definition by any other person with whom such person is acting jointly or in concert with respect to the Company or any of its securities; and
(vi) "public announcement" shall mean disclosure in a press release reported by a national
news service in Canada, or in a document publicly filed by the Company or its agents under its profile on the System of Electronic Document Analysis and Retrieval at www.sedar.com.
(g) Notwithstanding any other provision to this §14.12, notice or any delivery given to an officer of the Company pursuant to this §14.12 may only be given by personal delivery,
facsimile transmission, email or other electronic transmission method made available by the Company, and shall be deemed to have been given and made only at the time it is served by personal delivery, email, electronic transmission or sent by
facsimile transmission (provided that receipt of confirmation of such transmission has been received) to an officer of the Company at the address of the principal executive offices of the Company; provided that if such delivery or electronic
communication is made on a day which is a not a Business Day or later than 5:00 p.m. (Vancouver time) on a day which is a Business Day, then such delivery or electronic communication shall be deemed to have been made on the subsequent day that is a
Business Day.
14.13 In no event shall any adjournment or postponement of a Meeting of Shareholders or the announcement thereof commence a new time
period for the giving of a Nominating Shareholder's notice as described in §14.12(c).
PART 15
POWERS AND DUTIES OF DIRECTORS
Powers of
Management
15.1 The directors must, subject to the Act and these Articles, manage or supervise the management of the business and affairs of the
Company and have the authority to exercise all such powers of the Company as are not, by the Act or by these Articles, required to be exercised by the shareholders of the Company.
Appointment of Attorney of
Company
15.2 The directors may from time to time, by power of attorney or other instrument, appoint any person to be the attorney of the Company
for such purposes, and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under these Articles and excepting the power to fill vacancies in the board of directors, to remove a director, to
change the membership of, or fill vacancies in, any committee of the directors, to appoint or remove officers appointed by the directors and to declare dividends) and for such period, and with such remuneration and subject to such conditions as the
directors may think fit. Any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorney as the directors think fit. Any such attorney may be authorized by the directors to sub-delegate
all or any of the powers, authorities and discretions for the time being vested in him or her.
PART 16
INTERESTS OF DIRECTORS AND OFFICERS
Obligation to Account for Profits
16.1 A director or senior officer who holds a disclosable interest (as that term is used in the Act) in a contract or transaction into which the Company
has entered or proposes to enter is liable to account to the Company for any profit that accrues to the director or senior officer under or as a result of the contract or transaction only if and to the extent provided in the Act.
Restrictions on Voting by Reason of Interest
16.2 A director who holds a disclosable interest in a contract or
transaction into which the Company has entered or proposes to enter is not entitled to vote on any directors' resolution to approve that contract or transaction, unless all the directors have a disclosable interest in that contract or transaction,
in which case any or all of those directors may vote on such resolution.
Interested Director Counted in Quorum
16.3 A director who holds a disclosable interest in a contract or transaction into which the Company has entered or proposes to enter and who is present
at the meeting of directors at which the contract or transaction is considered for approval may be counted in the quorum at the meeting whether or not the director votes on any or all of the resolutions considered at the meeting.
Disclosure of Conflict of Interest or Property
16.4 A director or senior officer who holds any office or
possesses any property, right or interest that could result, directly or indirectly, in the creation of a duty or interest that materially conflicts with that individual's duty or interest as a director or senior officer, must disclose the nature
and extent of the conflict as required by the Act.
Director Holding Other Office in the Company
16.5 A
director may hold any office or place of profit with the Company, other than the office of auditor of the Company, in addition to his or her office of director for the period and on the terms (as to remuneration or otherwise) that the directors may
determine.
No Disqualification
16.6 No director or intended director is disqualified by his or her office
from contracting with the Company either with regard to the holding of any office or place of profit the director holds with the Company or as vendor, purchaser or otherwise, and no contract or transaction entered into by or on behalf of the Company
in which a director is in any way interested is liable to be voided for that reason.
Professional Services by Director or Officer
16.7 Subject to
the Act, a director or officer, or any person in which a director or officer has an interest, may act in a professional capacity for the Company, except as auditor of the Company, and the director or officer or such person is entitled to
remuneration for professional services as if that director or officer were not a director or officer.
Director or Officer in Other Corporations
16.8 A director or officer may be or become a director, officer or employee of, or otherwise interested in, any person in which the Company may be interested as a shareholder or otherwise, and,
subject to the Act, the director or officer is not accountable to the Company for any remuneration or other benefits received by him or her as director, officer or employee of, or from his or her interest in, such other person.
PART 17
PROCEEDINGS OF DIRECTORS
Meetings of Directors
17.1 The directors may meet together for the conduct of business, adjourn and otherwise regulate their meetings as they think fit, and meetings of the
directors held at regular intervals may be held at the place, at the time and on the notice, if any, as the directors may from time to time determine.
Voting at Meetings
17.2 Questions arising at any meeting of directors are to be decided by a majority of votes and, in the case of an equality of votes, the chair of the
meeting does not have a second or casting vote.
Chair of Meetings
17.3 The following individual is
entitled to preside as chair at a meeting of directors:
(a) the chair of the board, if any;
(b) in the absence of the chair of the board, the president, if any, if the president is a director; or
(c) any other director chosen by the directors if:
(i) neither the chair of the board nor the president, if a director, is present at the meeting within 15 minutes after the time set for holding the meeting;
(ii) neither the chair of the board nor the president, if a director, is willing to chair the meeting; or
(iii) the chair of the board and the president, if a director, have advised the secretary, if any, or any other director, that they will not be present at the meeting.
Place of Meetings
17.4 Meetings of directors may be held at any place within or outside of Canada, or if so
approved by all of the directors, such meeting may be held entirely by means of an electronic or other communication facility that permits all persons participating in the meeting to communicate adequately with each other to the extent permitted by
the Act.
Meetings by Telephone or Other Communications Medium
17.5 A director may participate in a meeting
of the directors or of any committee of the directors:
(a) in person; or
(b) by telephone or by other communications medium if all directors participating in the meeting, whether in person or by telephone
or other communications medium, are able to communicate with each other.
A director who participates in a meeting in a manner contemplated by this §17.5 is deemed for all purposes of the Act and these
Articles to be present at the meeting and to have agreed to participate in that manner.
Calling of Meetings
17.6 A director may, and the secretary or an assistant secretary of the Company, if any, on the request of a director must, call a meeting of the
directors at any time.
Notice of Meetings
17.7 Other than for meetings held at regular intervals as
determined by the directors pursuant to §17.1, reasonable notice of each meeting of the directors, specifying the place, day and time of that meeting must be given to each of the directors by any method set out in §23.1 or orally or by
telephone.
When Notice Not Required
17.8 It is not necessary to give notice of a meeting of the directors
to a director if:
(a) the meeting is to be held immediately following a meeting of shareholders at which that director was
elected or appointed, or is the meeting of the directors at which that director is appointed; or
(b) the director has waived
notice of the meeting.
Meeting Valid Despite Failure to Give Notice
17.9 The accidental omission to give notice of any meeting of
directors to, or the non-receipt of any notice by, any director, does not invalidate any proceedings at that meeting.
Waiver of Notice of Meetings
17.10 Any director may send to the Company a document signed by him or her waiving notice of any past, present or future meeting or meetings of the directors and may at any time withdraw that waiver
with respect to meetings held after that withdrawal. After sending a waiver with respect to all future meetings and until that waiver is withdrawn, no notice of any meeting of the directors need be given to that director and all meetings of the
directors so held are deemed not to be improperly called or constituted by reason of notice not having been given to such director. Attendance of a director at a meeting of the directors is a waiver of notice of the meeting unless that director
attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
Quorum
17.11 The quorum necessary for the transaction of the business of the directors may be set by the directors and, if not so set, is deemed to be a majority of the directors or, if the number of
directors is set at one, is deemed to be set at one director, and that director may constitute a meeting.
Validity of Acts Where Appointment Defective
17.12 Subject to the Act, an act of a director or officer is not invalid merely because of an irregularity in the election or appointment or a defect in the qualification of that director or
officer.
Consent Resolutions in Writing
17.13 A resolution of the directors or of any committee of the
directors may be passed without a meeting:
(a) in all cases, if each of the directors entitled to vote on the resolution consents
to it in writing; or
(b) in the case of a resolution to approve a contract or transaction in respect of which a director has
disclosed that he or she has or may have a disclosable interest, if each of the other directors who have not made such a disclosure consents in writing to the resolution.
A consent in writing under this
§17.13 may be by signed document, fax, email or any other method of transmitting legibly recorded messages. Any electronic signature on a consent, whether digital or encrypted, shall be deemed to have the same force and effect as a manual
signature. A consent in writing may be in two or more counterparts which together are deemed to constitute one consent in writing. A resolution of the directors or of any committee of the directors passed in accordance with this §17.13 is
effective on the date stated in the consent in writing or on the latest date stated on any counterpart and is deemed to be a proceeding at a meeting of directors or of the committee of the directors and to be as valid and effective as if it had been
passed at a meeting of the directors or of the committee of the directors that satisfies all the requirements of the Act and all the requirements of these Articles relating to meetings of the directors or of a committee of the directors.
PART
18
EXECUTIVE AND OTHER COMMITTEES
Appointment and Powers of Executive Committee
18.1 The
directors may, by resolution, appoint an executive committee consisting of the director or directors that they consider appropriate, and this committee has, during the intervals between meetings of the board of directors, all of the directors'
powers, except:
(a) the power to fill vacancies in the board of directors;
(b) the power to remove a director;
(c) the power to change the membership of, or fill vacancies in, any committee of the directors; and
(d) such other powers, if any, as may be set out in the resolution or any subsequent directors' resolution.
Appointment and Powers of Other
Committees
18.2 The directors may, by resolution:
(a) appoint one or more committees (other than the executive committee) consisting of the director or directors that they consider appropriate;
(b) delegate to a committee appointed under §(a) any of the directors' powers, except:
(i) the power to fill vacancies in the board of directors;
(ii) the power to remove a director;
(iii) the power to change the membership
of, or fill vacancies in, any committee of the directors; and
(iv) the power to appoint or remove officers appointed by the
directors; and
(c) make any delegation referred to in §(b) subject to the conditions set out in the resolution or any
subsequent directors' resolution.
Obligations of Committees
18.3 Any committee appointed under §18.1 or §18.2, in the exercise of the
powers delegated to it, must:
(a) conform to any rules that may from time to time be imposed on it by the directors; and
(b) report every act or thing done in exercise of those powers at such times as the directors may require.
Powers of Board
18.4 The directors may, at any time, with respect to a committee appointed under §18.1 or
§18.2
(a) revoke or alter the authority given to the committee, or override a decision made by the committee, except as to
acts done before such revocation, alteration or overriding;
(b) terminate the appointment of, or change the membership of, the
committee; and
(c) fill vacancies in the committee.
Committee Meetings
18.5 Subject to §18.3(a) and unless the directors otherwise provide in the resolution appointing the committee or in any subsequent resolution, with
respect to a committee appointed under §18.1 or §18.2:
(a) the committee may meet and adjourn as it thinks proper;
(b) the committee may elect a chair of its meetings but, if no chair of a meeting is elected, or if at a meeting the chair of the
meeting is not present within 15 minutes after the time set for holding the meeting, the directors present who are members of the committee may choose one of their number to chair the meeting;
(c) a majority of the members of the committee constitutes a quorum of the committee; and
(d) questions arising at any meeting of the committee are determined by a majority of votes of the members present, and in case of an
equality of votes, the chair of the meeting does not have a second or casting vote.
PART 19
OFFICERS
Directors May Appoint Officers
19.1 The directors may, from time to time, appoint such officers, if any, as the directors determine and the directors may, at any time, terminate any such appointment.
Functions, Duties and Powers of Officers
19.2 The directors may, for each officer:
(a) determine the functions and duties of the officer;
(b) entrust to and confer on the officer any of the powers exercisable by the directors on such terms and conditions and with such restrictions as the directors think fit; and
(c) revoke, withdraw, alter or vary all or any of the functions, duties and powers of the officer.
Qualifications
19.3 No person may be appointed as an officer unless that person is qualified in accordance
with the Act. One person may hold more than one position as an officer of the Company. Any person appointed as the chair of the board, chair of a committee of the board or lead independent director, if any, must be a director. Any other officer need
not be a director.
Remuneration and Terms of Appointment
19.4 All appointments of officers are to be made
on the terms and conditions and at the remuneration (whether by way of salary, fee, commission, participation in profits or otherwise) that the directors thinks fit and are subject to termination at the pleasure of the directors, and an officer may
in addition to such remuneration be entitled to receive, after he or she ceases to hold such office or leaves the employment of the Company, a pension or gratuity.
PART 20
INDEMNIFICATION
Definitions
20.1 In this Part 20:
(a) "eligible party", in relation to a company, means an individual who:
(i) is or was a director or officer of the Company;
(ii) is or was a director or officer of another corporation
(A) at a time
when the corporation is or was an affiliate of the Company, or
(B) at the request of the Company; or
(iii) at the request of the Company, is or was, or holds or held a position equivalent to that of, a director or officer of a
partnership, trust, joint venture or other unincorporated entity,
and includes, except in the definition of "eligible proceeding" and Sections 163(1)(c) and (d) and 165 of the Act, the heirs and
personal or other legal representatives of that individual;
(b) "eligible penalty" means a judgment, penalty or fine
awarded or imposed in, or an amount paid in settlement of, an eligible proceeding;
(c) "eligible proceeding" means a
proceeding in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or holding or having held a position
equivalent to that of a director or officer of, the Company or an associated corporation
(i) is or may be joined as a party; or
(ii) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding;
(d) "expenses" has the meaning set out in the Act and includes costs, charges and expenses, including legal and other fees,
but does not include judgments, penalties, fines or amounts paid in settlement of a proceeding; and
(e) "proceeding"
includes any legal proceeding or investigative action, whether current, threatened, pending or completed.
Mandatory Indemnification of Eligible Parties
20.2 Subject to the Act, the Company must indemnify each eligible party and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be
liable, and the Company must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each eligible party is deemed to have contracted with the Company on
the terms of the indemnity contained in this §20.2.
Indemnification of Other Persons
20.3 Subject to any restrictions in the Act, the Company may agree to
indemnify and may indemnify any person (including an eligible party) against eligible penalties and pay expenses incurred in connection with the performance of services by that person for the Company.
Authority
to Advance Expenses
20.4 The Company may advance expenses to an eligible party to the extent permitted by and in accordance with the Act.
Non-Compliance with Act
20.5 Subject to the Act, the failure of an eligible party of the Company to comply
with the Act or these Articles or, if applicable, any former Companies Act or former Articles does not, of itself, invalidate any indemnity to which he or she is entitled under this Part 20.
Company May
Purchase Insurance
20.6 The Company may purchase and maintain insurance for the benefit of any eligible party (or the heirs or legal personal
representatives of any eligible party) against any liability incurred by any eligible party.
PART 21
DIVIDENDS
Payment of Dividends Subject to Special
Rights
21.1 The provisions of this Part 21 are subject to the rights, if any, of shareholders holding shares with special rights as to
dividends.
Declaration of Dividends
21.2 Subject to the Act, the directors may from time to time declare
and authorize payment of such dividends as they may deem advisable.
No Notice Required
21.3 The directors
need not give notice to any shareholder of any declaration under §21.2.
Record Date
21.4 The
directors must set a date as the record date for the purpose of determining shareholders entitled to receive payment of a dividend. The record date must not precede the date on which the dividend is to be paid by more than two months.
Manner of Paying
Dividend
21.5 A resolution declaring a dividend may direct payment of the dividend wholly or partly in money or by the distribution of specific
assets or of fully paid shares or of bonds, debentures or other securities of the Company or any other entity, or in any one or more of those ways.
Settlement of Difficulties
21.6 If any difficulty arises in regard to a distribution under §21.5, the directors may settle the difficulty as they deem advisable, and, in
particular, may:
(a) set the value for distribution of specific assets;
(b) determine that money in substitution for all or any part of the specific assets to which any shareholders are entitled may be
paid to any shareholders on the basis of the value so fixed in order to adjust the rights of all parties; and
(c) vest any such
specific assets in trustees for the persons entitled to the dividend.
When Dividend Payable
21.7 Any
dividend may be made payable on such date as is fixed by the directors.
Dividends to be Paid in Accordance with Number of Shares
21.8 All dividends on shares of any class or series of shares must be declared and paid according to the number of such shares held.
Receipt by Joint
Shareholders
21.9 If several persons are joint shareholders of any share, any one of them may give an effective receipt for any dividend, bonus
or other money payable in respect of the share.
Dividend Bears No Interest
21.10 No dividend bears interest
against the Company.
Fractional Dividends
21.11 If a dividend to which a shareholder is entitled includes a
fraction of the smallest monetary unit of the currency of the dividend, that fraction may be disregarded in making payment of the dividend and that payment represents full payment of the dividend.
Payment of
Dividends
21.12 Any dividend or other distribution payable in money in respect of shares may be paid (i) by cheque, made payable to the order of
the person to whom it is sent, and mailed to the registered address of the shareholder, or in the case of joint shareholders, to the registered address of the joint shareholder who is first named on the central securities register, or to the person
and to the address the shareholder or joint shareholders may direct in writing or (ii) with the consent of the Company and the shareholder, by wire transfer or other electronic means. In the case of payment of a dividend by cheque, mailing of such
cheque will, to the extent of the sum represented by the cheque (plus the amount of the tax required by law to be deducted), discharge all liability for the dividend unless such cheque is not paid on presentation or the amount of tax so deducted is
not paid to the appropriate taxing authority. In the case of payment of a dividend by wire transfer or other electronic means, the initiation of such payment by the Company will, to the extent of the sum represented by the transfer (plus the amount
of the tax required by law to be deducted), discharge all liability for the dividend unless the amount of tax so deducted is not paid to the appropriate taxing authority.
Capitalization of Retained
Earnings or Surplus
21.13 Notwithstanding anything contained in these Articles, the directors may from time to time capitalize any retained
earnings or surplus of the Company and may from time to time issue, as fully paid, shares or any bonds, debentures or other securities of the Company as a dividend representing the retained earnings or surplus so capitalized or any part thereof.
PART 22
ACCOUNTING RECORDS AND AUDITOR
Recording of Financial Affairs
22.1 The directors must cause adequate accounting records to be kept to record properly the financial affairs and condition of the Company and to comply with the Act.
Inspection of Accounting Records
22.2 Unless the directors determine otherwise, or unless otherwise determined
by ordinary resolution, no shareholder of the Company is entitled to inspect or obtain a copy of any accounting records of the Company.
Remuneration of Auditor
22.3 The directors may set the remuneration of the auditor of the Company.
PART 23
NOTICES
Method of
Giving Notice
23.1 Unless the Act or these Articles provide otherwise, a notice, statement, report or other record required or permitted by the
Act or these Articles (a "Notice") to be sent by or to a person may be sent by:
(a) mail addressed to the person at the applicable address for that person as
follows:
(i) for a Notice mailed to a shareholder, the shareholder's registered address;
(ii) for a Notice mailed to a director or officer, the prescribed address for mailing shown for the director or officer in the records
kept by the Company or the mailing address provided by the recipient for the sending of Notices of that class;
(iii) in any other
case, the mailing address of the intended recipient;
(b) delivery at the applicable address for that person as follows, addressed
to the person:
(i) for a Notice delivered to a shareholder, the shareholder's registered address;
(ii) for a Notice delivered to a director or officer, the prescribed address for delivery shown for the director or officer in the
records kept by the Company or the delivery address provided by the recipient for the sending of Notices of that class;
(iii) in
any other case, the delivery address of the intended recipient;
(c) sending the Notice by fax to the fax number provided by the
intended recipient for the sending of Notices that class;
(d) sending the Notice by email to the email address provided by the
intended recipient for the sending of Notices of that class;
(e) sending the Notice by other means of electronic transmission
accessible by the intended recipient for the sending of Notices of that class in accordance with applicable law; and
(f) physical
delivery to the intended recipient.
Press Release
23.2 Unless the Act or these Articles provide otherwise,
a Notice to be sent to a shareholder shall be deemed conclusively to have been given or made, and the obligation to give any Notice shall, unless otherwise required by applicable laws and regulations, be deemed conclusively to have been fully
satisfied upon issuing a press release complying with applicable laws and regulations if deemed by the board of directors to be a reasonable or appropriate means of providing such Notice.
Deemed Receipt of
Mailing
23.3 A notice, statement, report or other record that is:
(a) mailed to a person by ordinary mail to the applicable address for that person referred to in §23.1 is deemed to be received by the person to whom it was mailed on the day (Saturdays,
Sundays and holidays excepted) following the date of mailing;
(b) faxed to a person to the fax number provided by that person under §23.1 is deemed to be received by the person to
whom it was faxed on the day it was faxed;
(c) emailed to a person to the e-mail address provided by that person under §23.1
is deemed to be received by the person to whom it was e-mailed on the day that it was emailed; and
(d) sent to a person by other
means of electronic transmission under §23.1 is deemed to be received by the person to whom it was transmitted on the day that such transmission occurred.
Certificate of Sending
23.4 A certificate signed by the secretary, if any, or other officer of the Company or of any other corporation acting in that capacity on behalf of the
Company stating that a notice, statement, report or other record was sent in accordance with §23.1 is conclusive evidence of that fact.
Notice to Joint Shareholders
23.5 A notice, statement, report or other record may be provided by the Company to the joint shareholders of a share by providing such record to the
joint shareholder first named in the central securities register in respect of the share.
Notice to Legal Personal Representatives and Trustees
23.6 A notice, statement, report or other record may be provided by the Company to the persons entitled to a share in consequence of the death, bankruptcy or incapacity of a shareholder by:
(a) mailing the record, addressed to them:
(i) by name, by the title of the legal personal representative of the deceased or incapacitated shareholder, by the title of trustee of the bankrupt shareholder or by any similar description;
and
(ii) at the address, if any, supplied to the Company for that purpose by the persons claiming to be so entitled; or
(b) if an address referred to in §(a)(ii) has not been supplied to the Company, by giving the notice in a manner in which it
might have been given if the death, bankruptcy or incapacity had not occurred.
Undelivered Notices
23.7 If
on two consecutive occasions, a notice, statement, report or other record is sent to a shareholder pursuant to §23.1 and on each of those occasions any such record is returned because the shareholder cannot be located, the Company shall not be
required to send any further records to the shareholder until the shareholder informs the Company in writing of his or her new address.
PART
24
PROHIBITIONS
Definitions
24.1 In this Part 24:
(a) "designated security" means:
(i) a voting security of the Company;
(ii) a security of the Company that is
not a debt security and that carries a residual right to participate in the earnings of the Company or, on the liquidation or winding up of the Company, in its assets; or
(iii) a security of the Company convertible, directly or indirectly, into a security described in §(a) or §(b);
(b) "security" has the meaning assigned in the Securities Act (British Columbia); and
(c) "voting security" means a security of the Company that:
(i) is
not a debt security; and
(ii) carries a voting right either under all circumstances or under some circumstances that have occurred
and are continuing.
Application
24.2 §24.3 does not apply to the Company if and for so long as it is
a public company, a private company which is no longer eligible to use the private issuer exemption under the Securities Act (British Columbia) or a pre-existing reporting company which has the Statutory Reporting Company Provisions as part
of its Articles or a company to which the Statutory Reporting Company Provisions apply.
Consent Required for Transfer of Shares or Designated Securities
24.3 No share or designated security may be sold, transferred or otherwise disposed of without the consent of the directors and the directors are not required to give any reason for refusing to
consent to any such sale, transfer or other disposition.
PART 25
SPECIAL RIGHTS AND RESTRICTIONS
CLASS A EXCHANGEABLE SUBORDINATE VOTING SHARES
Special Rights and Restrictions
25.1 The Class A Shares as a class shall have attached thereto the special rights and restrictions specified in this Part 25.
DIVIDENDS
Dividend Rights
25.2 Each Class A Shareholder shall
be entitled to receive, and the Company shall pay thereon, as and when declared by the board of directors, a dividend on each Class A Share in an amount in cash for each Class A Share equal to the cash distribution declared on each BIP Unit on each
BIP Distribution Declaration Date multiplied by the Conversion Factor in effect on the Record Date of such dividend (the "Class A Dividend"), it being understood that Class A Shareholders will not be entitled to any dividends other than the
Class A Dividend.
Unpaid Dividends
25.3 If the full amount of a Class A Dividend is not declared on a BIP
Distribution Declaration Date, or is declared but is not paid on the payment date, then such Class A Dividend shall accrue and accumulate, whether or not the Company has earnings, whether or not there are funds legally available for the payment
thereof and whether or not such distributions are earned, declared or authorized (such amounts, the "Unpaid Dividends"). Any dividend payment made on the Class A Shares shall first be credited against the earliest Unpaid Dividends due with
respect to such Class A Shares which remains payable.
Payment of Dividends
25.4 Cheques of the Company may
be issued in respect of all Class A Dividends contemplated by §25.2 and the sending of such cheque to each Class A Shareholder will satisfy the cash dividend represented thereby unless the cheque is not paid on presentation. Subject to the
requirements of applicable Law with respect to unclaimed property, no Class A Shareholder will be entitled to recover by action or other legal process against the Company any dividend that is represented by a cheque that has not been duly presented
to the Company's bankers for payment or that otherwise remains unclaimed for a period of two years from the date on which such dividend was first payable.
Record and Payment Dates
25.5 The Record Date with respect to any Class A Dividend declared by the board of directors and the payment date of such Class A Dividend will be the
same dates as the Record Date and the payment date, respectively, for the corresponding distribution declared on the BIP Units, each as approved by the board of directors.
RANKING
Ranking of the Class A Shares
25.6 The Class A Shares shall, as to the payment of dividends and return of
capital in a Liquidation Event, rank junior to the Preferred Shares and senior to the Class B Shares, the Class C Shares and any other shares ranking junior to the Class A Shares with respect to priority in payment of dividends and return of capital
in the event of the liquidation, dissolution or winding-up of the Company.
VOTING
Voting Rights
25.7 Except as expressly provided herein, each Class A Shareholder will be entitled to receive notice of, and to attend and vote at, all meetings of shareholders of the Company, except for
meetings at which only holders of another specified class or series of shares are entitled to vote separately as a class or series. Each Class A Shareholder shall be entitled to cast one vote for each Class A Share held at the record date for the
determination of shareholders entitled to vote on any matter.
25.8 Except as otherwise expressly provided herein or as required by Law, the Class A
Shareholders and Class B Shareholders will vote together and not as separate classes.
25.9 Subject to any rights of the holders of any series of
Preferred Shares to elect directors under specified circumstances, the holders of the outstanding Class A Shares and Class B Shares, voting together, shall be entitled to vote in respect of the election of all directors of the Company.
Amendment with Approval of Class A Shareholders
25.10 In addition to any other approvals required by Law, any
approval given by the Class A Shareholders to add to, change or remove any right, privilege, restriction or condition attaching to the Class A Shares or any other matter requiring the approval or consent of the Class A Shareholders as a separate
class will be deemed to have been sufficiently given if it will have been given in accordance with applicable Law, subject to a minimum requirement that such amendment be approved by not less than 66 2/3% of the votes cast on such amendment at a
meeting of Class A Shareholders duly called and held at which the Class A Shareholders holding at least 10% of the outstanding Class A Shares at that time are present or represented by proxy; provided that such approval must be given also by the
affirmative vote of holders of not less than 66 2/3% of the Non-Affiliated Holders represented in person or by proxy at the meeting. If at any such meeting the Class A Shareholders holding at least 10% of the outstanding Class A Shares at as of the
Record Date of such meeting are not present or represented by proxy within one-half hour after the time appointed for such meeting, then the meeting will be adjourned to such date not less than five days thereafter and to such time and place as may
be designated by the chairman of such meeting. At such reconvened meeting, the Class A Shareholders present or represented by proxy thereat may transact the business for which the meeting was originally called and a resolution passed thereat by the
affirmative vote of not less than 66 2/3% of the votes cast on such amendment at such reconvened meeting excluding the BIP-Affiliated Class A Shareholders shall be effective.
EXCHANGE
RIGHTS
Exchange at the Option of the Class A Shareholder
25.11 Subject to applicable Law and the due
exercise by BIP of the Exchange-Redemption Call Right, at any time from and after the date of the issuance of the Class A Shares, each Class A Shareholder shall have the right (the "Exchange Right") to require the Company to redeem all or
such portion of the Class A Shares registered in the name of such Class A Shareholder specified in a Notice of Exchange delivered to the Transfer Agent by or on behalf of such Class A Shareholder (such Class A Shares being hereafter referred to as
"Tendered Class A Shares" and such Class A Shareholder, the "Tendering Class A Shareholder") for the BIP Units Amount per Tendered Class A Share or, if the Company elects in its sole and absolute discretion, the Cash Amount (in lieu of
the BIP Units Amount per Tendered Class A Share), plus, in either case, a cash amount equal to any Unpaid Dividends per Tendered Class A Share.
Notice of Exchange
25.12 A Class A Shareholder must deliver a Notice of Exchange either electronically (by electronic mail or by any other electronic procedure that may be established by the Transfer Agent and
communicated to the Class A Shareholders by the Company or the Transfer Agent) or physically (by mail, courier, hand delivery or otherwise) to any office of the Transfer Agent prior to the issuance by the Company of a Notice of Class A Redemption or
the announcement of a Liquidation Event in order to exercise his, her or its Exchange Right. The Transfer Agent shall promptly notify the Company, BIP and, until such time as the Rights Agreement has been terminated, BAM, of the receipt of a Notice
of Exchange.
Satisfaction of Exchange Rights
25.13 Upon receipt by the Transfer Agent of a Notice of
Exchange and such additional documents and instruments as the Company or the Transfer Agent may reasonably require, and provided that BIP has not exercised the Exchange-Redemption Call Right, the Company will redeem the applicable Tendered Class A
Shares on or prior to the Specified Exchange Date. The Company will deliver or cause to be delivered to the Tendering Class A Shareholder, at the address of the holder recorded in the register of the Company for the Class A Shares or at the address
specified in the holder's Notice of Exchange, either (i) the BIP Units Amount, or (ii) the Cash Amount, as the Company may determine in its sole and absolute discretion, together with a cash amount for each Tendered Class A Share equal to any
Unpaid Dividends per Tendered Class A Share ((i) or (ii), plus such Unpaid Dividends collectively being the "Exchange Consideration") and such delivery of such Exchange Consideration by or on behalf of the Company by the Transfer Agent will
be deemed to be payment of and will satisfy and discharge all liability for the Exchange Rights so exercised. Should the Company elect to satisfy Exchange Rights by delivering the Cash Amount, then the payment of such amount shall be made in the
manner set forth in §25.4.
25.14 Any Tendering Class A Shareholder shall have no further right, with respect to any Tendered Class A Shares
redeemed, repurchased or exchanged, to receive any dividends on Class A Shares with a Record Date on or after the date on which the Transfer Agent receives such Notice of Exchange. Each Tendering Class A Shareholder shall continue to own each Class
A Share subject to any Notice of Exchange, and be treated as a Class A Shareholder with respect to each such Class A Share for all other purposes of these Articles, until such Class A Share has been redeemed in accordance with §25.13 or
repurchased or exchanged in accordance with the Rights Agreement, as applicable, for the Secondary Exchange Amount in accordance with §25.16. A Tendering Class A Shareholder shall have no rights as a unitholder of BIP with respect to any BIP
Units to be received by such Tendering Class A Shareholder in exchange for Tendered Class A Shares pursuant to §25.11 until the Transfer Agent has issued such BIP Units to such Tendering Class A Shareholder.
25.15 Notwithstanding anything to the contrary set forth herein, the Company will not be obligated to redeem Tendered Class A Shares to the extent that such redemption would be contrary to solvency
requirements or other provisions of applicable Law. If the Company believes that it would not be permitted by any such requirements or other provisions to redeem the Tendered Class A Shares, and BIP has not exercised its Exchange-Redemption Call
Right with respect to the Tendered Class A Shares, the Company will only be obligated to redeem the maximum number of Tendered Class A Shares (rounded down to a whole number of Class A Shares) that would not be contrary to such requirements or other
provisions. The Company will notify any such Tendering Class A Shareholder at least one Business Day prior to the Specified Exchange Date as to the number of Tendered Class A Shares that will be redeemed by the Company. Where there is more than one
Tendering Class A Shareholder, the Company will redeem the maximum number of Tendered Class A Shares that would not be contrary to such requirements or other provisions among such Tendering Class A Shareholders on a pro rata basis.
Secondary Exchange Rights
25.16 For so long as the Rights Agreement has not been terminated, if a Tendering
Class A Shareholder has not received the Exchange Consideration with respect to any Tendered Class A Shares by the Close of Business on the applicable Specified Exchange Date for any reason, then, on the terms and subject to the conditions set forth
in the Rights Agreement, which the Class A Shareholders shall have a right to enforce, such Tendering Class A Shareholder shall be entitled to receive from BAM the Secondary Exchange Amount with respect to each such Tendered Class A Share no later
than the applicable Secondary Exchange Date (the "Secondary Exchange Right"). The Company shall send to BAM and to the Rights Agent on the applicable Specified Exchange Date a notice to the effect that the Tendering Class A Shareholder has
not received the Exchange Consideration and such notice will set forth the identity of the Tendering Class A Shareholder, the number of Tendered Class A Shares, the amounts of such Exchange Consideration then not paid and will be otherwise
consistent with the definition of "Company Notice" in the Rights Agreement.
No Fractional BIP Units
25.17 Notwithstanding anything to the contrary set forth herein, no fractional BIP Units shall be issued in connection with the satisfaction of Exchange
Rights, in connection with a redemption of a Class A Share or in connection with a Liquidation Event. In lieu of any fractional BIP Units to which the Tendering Class A Shareholder would otherwise be entitled, the Company shall pay a cash amount
equal to the BIP Unit Value on the Trading Day immediately preceding the Exchange Date multiplied by such fraction of a BIP Unit. In lieu of any fractional BIP Units to which the Tendering Class A Shareholder would otherwise be entitled pursuant to
the Rights Agreement, the Rights Agent shall pay a cash amount as determined in accordance with the terms and conditions of the Rights Agreement.
Withholding Taxes
25.18 Each
Tendering Class A Shareholder shall be required to pay to the Company the amount of any tax withholding due upon the redemption of Tendered Class A Shares pursuant to §25.11 to §25.13 and will be deemed to have authorized the Company to
retain such portion of the Exchange Consideration as the Company reasonably determines is necessary to satisfy its tax withholding obligations. Before making any withholding pursuant to this §25.18, the Company shall give each Tendering Class A
Shareholder within three (3) Business Days after the Company's receipt of a Notice of Exchange from such Tendering Class A Shareholder, notice of the Company's good faith estimate of the amount of any anticipated tax withholding (together with the
legal basis therefor) due upon the redemption of the Tendered Class A Shares subject to such Notice of Exchange, provide the Tendering Class A Shareholder with sufficient opportunity to provide any forms or other documentation or take such other
steps in order to avoid or reduce such tax withholding, and reasonably cooperate with the Tendering Class A Shareholder in good faith to attempt to reduce any amounts that would otherwise be withheld pursuant to this §25.18; provided that any
determination with respect to the tax withholding shall be made by the Company, BIP or an affiliate of BIP, as applicable, in its sole discretion exercised in good faith.
COMPANY REDEMPTION RIGHTS
Company Redemption
25.19 If the Company delivers or causes to be delivered a Notice of Class A Redemption to the
Class A Shareholders, it shall redeem all of the issued and outstanding Class A Shares on the Specified Class A Redemption Date. The Company may deliver a Notice of Class A Redemption at any time, in its sole discretion and subject to applicable
Law, including in any of the following circumstances:
(a) the total number of Class A Shares outstanding decreases by 50% or more
over any 12-month period;
(b) a Person acquires 90% of the BIP Units in a take-over bid (as defined by Applicable Securities
Laws);
(c) the holders of BIP Units approve an acquisition of BIP by way of arrangement or amalgamation;
(d) the holders of BIP Units approve a restructuring or other reorganization of BIP;
(e) there is a sale of all or substantially all the assets of BIP;
(f) there is a change of Law (whether by legislative, governmental or judicial action), administrative practice or interpretation, or a change in circumstances of the Company and the
shareholders of the Company, that may result in adverse tax consequences for the Company or the shareholders of the Company; or
(g) the board, in its good faith, concludes that the holders of BIP Units or the Class A Shareholders are adversely impacted by a
fact, change, or other circumstance relating to the Company.
Right of Class B Shareholders to Cause Redemption of Class A Shares
25.20 The Class B Shareholders may, at any time and in their sole discretion, deliver a notice to the Company specifying a date upon which the Company shall redeem all of the issued and outstanding
Class A Shares (provided that such specified date is no less than 60 days from the date on which the Class B Shareholders deliver such notice), and as soon as reasonably practicable after the receipt of such notice, the Company shall, subject to
applicable Law, deliver a Notice of Class A Redemption to the Class A Shareholders and, without the consent of the Class A Shareholders, shall redeem all of the Class A Shares on the Specified Class A Redemption Date.
Redemption Procedure
25.21 In the event of a redemption of the Class A Shares, each Class A Shareholder shall be
considered a Tendering Class A Shareholder and each Class A Share shall be considered a Tendered Class A Share for the purposes of §25.19 to §25.22, and the Company shall, at or prior to Close of Business on the Specified Class A
Redemption Date, pay to each Tendering Class A Shareholder either (i) the BIP Units Amount, or (ii) the Cash Amount, as the Company may determine in its sole and absolute discretion, together with a cash amount for each Tendered Class A Share
equal to any Unpaid Dividends per Tendered Class A Share ((i) or (ii), plus such Unpaid Dividends collectively being the "Redemption Consideration") and such delivery of such Redemption Consideration by or on behalf of the Company by the
Transfer Agent will be deemed to be payment of and will satisfy and discharge all liability for the redemption of the Class A Shares. Should the Company elect to satisfy its obligation to redeem the Class A Shares by delivering the Cash Amount, then
the payment of such amount shall be made in the manner set forth in §25.4.
25.22 §25.14 to §25.18 shall apply in their entirety,
mutatis mutandis, to a redemption of the Class A Shares.
Exchange-Redemption Call Right
25.23 Notwithstanding the provisions in §25.11 to §25.22 above,
(a) in the event the Company receives a Notice of Exchange from a Tendering Class A Shareholder, BIP shall have an overriding right to acquire, or cause its affiliate to acquire all, but not
less than all, of the Tendered Class A Shares from the Tendering Class A Shareholder by delivering the Exchange Consideration (the form of Exchange Consideration to be determined by BIP in its sole and absolute discretion) in accordance with
§25.11 to §25.18, mutatis mutandis, in satisfaction of the obligations of the Company, and
(b) in the event the Company provides a Notice of Class A Redemption to each Class A
Shareholder, BIP shall have an overriding right to acquire, or cause its affiliate to acquire all, but not less than all, of the Class A Shares from each Class A Shareholder by delivering the Redemption Consideration (the form of Redemption
Consideration to be determined by BIP in its sole and absolute discretion) in accordance with §25.19 to §25.22, mutatis mutandis, in satisfaction of the obligations of the Company as set out therein (the right in either (a)
or (b) being the "Exchange-Redemption Call Right"),
and in the event of the exercise by BIP of the Exchange-Redemption Call Right, each Tendering Class A Shareholder will be obligated to
sell all Tendered Class A Shares held by such Tendering Class A Shareholder to BIP (or its affiliate, as applicable) on delivery by BIP (or its affiliate, as applicable) to such Tendering Class A Shareholder of the Exchange Consideration or the
Redemption Consideration, as applicable, and the Company will have no obligation to pay any Exchange Consideration or Redemption Consideration to the holders of such Class A Shares so purchased by BIP (or its affiliate, as applicable).
25.24 In order to exercise its Exchange-Redemption Call Right, BIP must notify the Transfer Agent in writing, as agent for the holders of Class A Shares,
and the Company, of its intention to exercise such right at least 3 days before the Specified Exchange Date or at least 10 days before the Specified Class A Redemption Date, as applicable. Delivery by BIP to the Transfer Agent of a standing
direction as to any exercise of the Exchange-Redemption Call Right in respect of the exercise of Exchange Rights shall satisfy the notification requirements set forth in this §25.24.
LIQUIDATION
Liquidation Rights
25.25 Upon any liquidation,
dissolution, winding up of the Company or any other distribution of its assets among its shareholders, whether voluntary or involuntary (a "Liquidation Event"), including where substantially concurrent with the liquidation, dissolution, or
winding up of BIP, whether voluntary or involuntary (a "BIP Liquidation Event"), each Class A Shareholder shall, subject to the exercise of the Liquidation Call Right, be entitled to be paid out of the assets of the Company legally available
for distribution on the effective date of the Liquidation Event (the "Liquidation Date") an amount in cash per Class A Share then held by them equal to the BIP Unit Value on the Trading Day immediately preceding the public announcement of the
Liquidation Event (the "Liquidation Reference Date") multiplied by the Conversion Factor (and together with a cash amount for each Class A Share equal to any Unpaid Dividends per Class A Share, the "Liquidation Amount").
Notwithstanding the foregoing, in connection with a Liquidation Event, including where substantially concurrent with a BIP Liquidation Event, if the Company, in its sole and absolute discretion elects, it may, subject to applicable Law, redeem all
of the outstanding Class A Shares in exchange for such number of BIP Units per Class A Share equal to the Conversion Factor in effect on the Liquidation Reference Date, together with a cash amount per Class A Share equal to any Unpaid Dividends per
Class A Share in accordance with §25.21 and §25.22, in lieu of paying the Liquidation Amount.
25.26 The rights of the Class A Shareholders to receive the amount set forth in §25.25 is subject
to:
(a) the prior rights of holders of all classes and series of Preferred Shares and any other class of shares ranking in
priority with the Class A Shares;
(b) prior payment in full to each Tendering Class A Shareholder and Tendering Class C
Shareholder that submitted a Notice of Exchange or a Notice of Class C Retraction, as applicable, at least 10 days prior to the date of the Liquidation Event of the Exchange Consideration (in the case of the Tendering Class A Shareholders) and the
Class C Retraction Amount (in the case of the Tendering Class C Shareholders); and
(c) prior payment in full to each Tendering
Class B Shareholder that submitted a Notice of Class B Retraction at least 30 days prior to the date of the Liquidation Event of the Cash Amount.
25.27 If, upon any such Liquidation Event, the assets of the Company are insufficient to make payment in full to all Class A Shareholders of the foregoing
amounts set forth in §25.25 with respect to the Liquidation Event, then such assets (or consideration) shall be distributed among the Class A Shareholders at the time outstanding, rateably in proportion to the full amounts to which they would
otherwise be respectively entitled to receive under §25.25.
BIP Liquidation Call Right
25.28 Notwithstanding §25.25, BIP will have the overriding right (the "Liquidation Call Right"), in the event of and notwithstanding the
occurrence of any Liquidation Event, to purchase from, or cause its affiliate to purchase from, all but not less than all of the Class A Shareholders on the Liquidation Date all but not less than all of the Class A Shares held by each such holder in
exchange for the issuance by BIP of such number of BIP Units per Class A Share equal to the Conversion Factor in effect on the Liquidation Reference Date (and together with a cash amount for each Class A Share equal to any Unpaid Dividends per Class
A Share, the "Liquidation Call Consideration"). In the event of the exercise of a Liquidation Call Right, each such Class A Shareholder will be obligated on the Liquidation Date to sell all the Class A Shares held by such holder to BIP on the
Liquidation Date upon issuance by BIP to the holder of the Liquidation Call Consideration for each such Class A Share and the Company will have no obligation to pay any Liquidation Amount to the holders of such Class A Shares so purchased by
BIP.
25.29 In order to exercise the Liquidation Call Right, BIP must notify the Transfer Agent in writing, as agent for the Class A Shareholders and
the Company, of its intention to exercise such right at least 30 days before the Liquidation Date in the case of a voluntary liquidation, dissolution or winding up of the Company and at least five Business Days before the Liquidation Date in the
case of an involuntary liquidation, dissolution or winding up of the Company. If BIP exercises the Liquidation Call Right in accordance with this §25.29, all obligations of the Company under §25.25 to §25.27 will terminate and on the
Liquidation Date BIP will purchase and Class A Shareholders will sell all of their Class A Shares then outstanding for a price per unit equal to the Liquidation Call Consideration.
Automatic Redemption
Rights
25.30 Subject to the exercise of the Liquidation Call Right, in connection with a BIP Liquidation Event, including where substantially
concurrent with a Liquidation Event, the Company shall, subject to applicable Law, redeem all outstanding Class A Shares on the day prior to the effective date of the BIP Liquidation Event for, in its sole and absolute discretion, (i) an amount in
cash per share equal to the BIP Unit Value on the Trading Day immediately preceding the public announcement of the BIP Liquidation Event multiplied by the Conversion Factor (together with a cash amount for each Class A Share equal to any Unpaid
Dividends per Class A Share), or (ii) such number of BIP Units equal to the Conversion Factor in effect on the Trading Day immediately preceding the public announcement of the BIP Liquidation Event (together with a cash amount for each Class A Share
equal to any Unpaid Dividends per Class A Share).
OTHER RIGHTS AND RESTRICTIONS
Conversion of Class A Shares
25.31 Any BIP-Affiliated Class A Shareholder shall be entitled at any time to have any or all of such BIP-Affiliated Class A Shareholder's Class A Shares converted into Class C Shares at a
conversion rate equal to one Class C Share for each Class A Share in respect of which the conversion right is exercised. The right of conversion herein provided for may be exercised by notice in writing given to the Transfer Agent (a "Conversion
Notice"), which notice shall specify the number of Class A Shares that the BIP-Affiliated Class A Shareholder desires to have converted. Upon receipt of a Conversion Notice, the Company shall, subject to applicable Law, promptly issue to the
converting BIP-Affiliated Class A Shareholder the requisite number of Class C Shares and the Transfer Agent shall cancel the converted Class A Shares subject to the Conversion Notice effective concurrently therewith.
Call Rights
25.32 Each Class A Shareholder, whether a registered holder or a beneficial holder, by virtue of
becoming and being such a holder will be deemed to acknowledge each of the Exchange-Redemption Call Right and the Liquidation Call Right, in each case, in favour of BIP, and the overriding nature thereof in connection with the exercise of Exchange
Rights, the liquidation, dissolution or winding-up of the Company or any other distribution of the assets of the Company among its shareholders for the purpose of winding up its affairs, or the retraction or redemption of Class A Shares, as the case
may be, and to be bound thereby in favour of BIP as herein provided.
PART 26
SPECIAL RIGHTS AND RESTRICTIONS
CLASS B MULTIPLE VOTING SHARES
Special Rights and Restrictions
26.1 The Class B Shares as a class shall have attached thereto the special rights and restrictions specified in this Part 26.
Dividend Rights
26.2 Except as set out in §26.3, the Class B Shareholders shall not be entitled to
receive any dividends on the Class B Shares.
Stock Dividends
26.3 In the event a dividend is declared and
paid on the Class A Shares consisting of Class A Shares, the board shall, subject to applicable Law, contemporaneously declare and pay an equivalent dividend on the Class B Shares consisting of Class B Shares.
Ranking of the Class B Shares
26.4 The Class B Shares shall, as to the return of capital in the event of the
liquidation, dissolution or winding-up of the Company, rank junior to the Preferred Shares and to the Class A Shares and senior to the Class C Shares and any other shares ranking junior to the Class B Shares with respect to priority in the return of
capital in a Liquidation Event.
Voting Rights
26.5 Except as expressly provided herein, each Class B
Shareholder will be entitled to receive notice of, and attend and vote at, all meetings of shareholders of the Company, except for meetings at which only holders of another specified class or series of shares are entitled to vote separately as a
class or series. Each Class B Shareholder will be entitled to cast a number of votes per Class B Share equal to: (i) the number that is three times the number of Class A Shares then issued and outstanding, divided by (ii) the number of Class
B Shares then issued and outstanding.
26.6 Except as otherwise expressly provided herein or as required by Law, the Class A Shareholders and the
Class B Shareholders will vote together and not as separate classes.
26.7 At any time that no Class A Shares are outstanding or for any vote held
only in respect of the Class B Shares, each Class B Shareholder will be entitled to cast one vote per Class B Share.
26.8 Subject to any rights of
the holders of any series of Preferred Shares to elect directors under specified circumstances, the holders of the outstanding Class A Shares and Class B Shares, voting together, shall be entitled to vote for the election of all directors of the
Company.
Amendment with
Approval of Class B Shareholders
26.9 In addition to any other approvals required by Law, the rights, privileges, restrictions and conditions
attached to the Class B Shares as a class may be added to, changed or removed but only with the approval of the Class B Shareholders given as hereinafter specified.
26.10 The approval of the Class B Shareholders to add to, change or remove any right, privilege, restriction or condition attaching to the Class B Shares as a class or in respect of any other matter
requiring the consent of the holders of the Class B Shareholders may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be given by resolution signed by all the Class B Shareholders or passed
by the affirmative vote of at least two thirds of the votes cast at a meeting of the Class B Shareholders duly called for that purpose. On every poll taken at every meeting of the Class B Shareholders as a class, each Class B Shareholder entitled to
vote thereat shall have one vote in respect of each Class B Share held.
Retraction at the Option of the Class B Shareholder
26.11 Subject to applicable Law, at any time from and after the date of the issuance of the Class B Shares, each Class B Shareholder shall have the right (the "Class B Retraction
Right") to require the Company to redeem all or such portion of the Class B Shares registered in the name of such Class B Shareholder specified in a Notice of Class B Retraction delivered to the Company by or on behalf of such Class B
Shareholder (such Class B Shares being hereafter referred to as "Tendered Class B Shares" and such Class B Shareholder, the "Tendering Class B Shareholder") for the Cash Amount (the "Class B Retraction Amount").
Notice of Class B Retraction
26.12 A Class B Shareholder must deliver a Notice of Class B Retraction to the
registered office of the Company in order to exercise his, her or its Class B Retraction Right.
Satisfaction of Retraction Right
26.13 Upon receipt by Company of a Notice of Class B Retraction and such additional documents and instruments as the Company may reasonably require, the Company shall redeem the Tendered Class B
Shares on or prior to the Specified Class B Retraction Date. The Company will deliver or cause to be delivered to the Tendering Class B Shareholder, at the address of the holder recorded in the register of the Company for the Class B Shares or at
the address specified in the holder's Notice of Class B Retraction, the Class B Retraction Amount, and such delivery of such Class B Retraction Amount by or on behalf of the Company, will be deemed to be payment of and will satisfy and discharge all
liability for the Class B Retraction Right so exercised.
26.14 Each Tendering Class B Shareholder shall continue to own each Class B Share subject to
any Notice of Class B Retraction, and be treated as a Class B Shareholder with respect to each such Class B Share for all other purposes of these Articles, until such Class B Share has been redeemed by the Company in accordance with §26.11 to
§26.16.
26.15 Notwithstanding anything to the contrary set forth herein, the Company will not be obligated to redeem Tendered Class B Shares to the extent that such redemption would be contrary to solvency
requirements or other provisions of applicable Law.
Withholding Taxes
26.16 Each Tendering Class B
Shareholder shall be required to pay to the Company the amount of any tax withholding due upon the redemption of Tendered Class B Shares pursuant to §26.11 to §26.13 and will be deemed to have authorized the Company to retain such portion
of the Class B Retraction Amount as the Company reasonably determines is necessary to satisfy its tax withholding obligations. Before making any withholding pursuant to this §26.16, the Company shall give each Tendering Class B Shareholder
within three (3) Business Days after the Company's receipt of a Notice of Class B Retraction from such Tendering Class B Shareholder, notice of the Company's good faith estimate of the amount of any anticipated tax withholding (together with the
legal basis therefor) due upon the redemption of the Tendered Class B Shares subject to such Notice of Class B Retraction, provide the Tendering Class B Shareholder with sufficient opportunity to provide any forms or other documentation or take such
other steps in order to avoid or reduce such tax withholding, and reasonably cooperate with the Tendering Class B Shareholder in good faith to attempt to reduce any amounts that would otherwise be withheld pursuant to this §26.16; provided that
any determination with respect to the tax withholding shall be made by the Company in its sole discretion exercised in good faith.
Liquidation Rights
26.17 Upon any Liquidation Event, including where substantially concurrent with a BIP Liquidation Event, subject to the following sentence, the Class B Shareholders shall be entitled to be paid out
of the assets of the Company legally available for distribution on the Liquidation Date an amount in cash per Class B Share then held by them equal to the BIP Unit Value for each such Class B Share. At any time no Class C Shares are outstanding, the
Class B Shareholders shall be entitled to receive on the Liquidation Date the assets and property of the Company remaining, if any, after the prior payments of the amounts set forth in §26.18.
26.18 The rights of the Class B Shareholders to receive the amount set forth in §26.17 is subject to the prior payment of the amounts set forth in §25.26(b) and §25.26(c) and to the
prior rights of holders of all classes and series of Preferred Shares, Class A Shares and any other class of shares ranking in priority or rateably with the Class B Shares.
26.19 If, upon any such Liquidation Event, the assets of the Company, after payment of any amounts owed to holders of all classes of shares ranking in priority to the Class B Shares, shall be
insufficient to make payment in full to all Class B Shareholders of the foregoing amounts set forth in §26.17 with respect to the Liquidation Event, then such assets (or consideration) shall be distributed among the Class B Shareholders at the
time outstanding, rateably in proportion to the full amounts to which they would otherwise be respectively entitled to receive under §26.17.
Transfer Restrictions
26.20 The Class B Shares may not be Transferred to any Person other than to BIP or a Person Controlled by BIP. If any Class B Shares are Transferred in
contravention of the preceding sentence, (i) such Transfer shall be null and void, and the Company shall not register or otherwise recognize the Transfer of the Class B Shares to the transferee, (ii) any rights to vote attaching to the Class B
Shares so Transferred may not be exercised by any Person, (iii) any payment by the Company on the Class B Shares so Transferred shall be prohibited and any such payment shall be forfeited, and (iv) any rights that an ineligible transferee may have
as a result of being a holder of Class B Shares shall be null and void, in each case, until such time as such Transfer is cancelled.
PART 27
SPECIAL RIGHTS AND RESTRICTIONS
CLASS C NON-VOTING SHARES
Special Rights and Restrictions
27.1 The Class C Shares as a class shall have attached thereto the special
rights and restrictions specified in this Part 27.
Dividend Rights
27.2 Class C Shareholders shall be
entitled to receive, as and when declared by the board of directors, out of any assets of the Company legally available therefor, such dividends as may be declared from time to time by the board of directors. The Class C Shareholders shall not be
entitled to receive dividends (i) unless and until the Company has paid any Unpaid Dividends, and (ii) unless and until the Company has paid all of the Exchange Consideration owing to any Tendering Class A Shareholders who have submitted Notices of
Exchange before the date the board of directors declares a dividend on the Class C Shares. The record and payment dates for dividends on Class C Shares shall be such date that the board of directors shall designate for the payment of such
dividends.
Stock Dividends
27.3 In the event a dividend is declared and paid on the Class A Shares
consisting of Class A Shares, the board shall, subject to applicable Law, contemporaneously declare and pay on the Class C Shares an equivalent dividend on a per share basis consisting of Class C Shares.
Ranking of the Class C Shares
27.4 The Class C Shares shall, as to the payment of dividends and return of
capital in a Liquidation Event, rank junior to the Preferred Shares, the Class A Shares and the Class B Shares and senior over any other shares ranking junior to the Class C Shares with respect to priority in payment of dividends and return of
capital in the event of the liquidation, dissolution or winding-up of the Company.
Voting Rights
27.5 Except as otherwise expressly provided
herein or as required by Law, each Class C Shareholder shall be entitled to notice of, and to attend, any meetings of shareholders of the Company, but shall not otherwise be entitled to vote at any such meeting.
Amendment with Approval of Class C Shareholders
27.6 In addition to any other approval required by Law, the
rights, privileges, restrictions and conditions attached to the Class C Shares as a class may be added to, changed or removed but only with the approval of the holders of the Class C Shares given as hereinafter specified.
27.7 The approval of the Class C Shareholders to add to, change or remove any right, privilege, restriction or condition attaching to the Class C Shares
as a class or in respect of any other matter requiring the consent of the Class C Shareholders may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be given by resolution signed by all the
Class C Shareholders or passed by the affirmative vote of at least two thirds of the votes cast at a meeting of the Class C Shareholders duly called for that purpose. On every poll taken at every meeting of the Class C Shareholders as a class, each
Class C Shareholder entitled to vote thereat shall have one vote in respect of each Class C Share held.
Retraction at the Option of the Class C Shareholder
27.8 Subject to applicable Law, at any time from and after the date of the issuance of the Class C Shares, each Class C Shareholder shall have the right (the "Class C Retraction
Right") to require the Company to redeem all or such portion of the Class C Shares registered in the name of such Class C Shareholder specified in an Notice of Class C Retraction delivered to the Company by or on behalf of such Class C
Shareholder (such Class C Shares being hereafter referred to as "Tendered Class C Shares" and such Class C Shareholder, the "Tendering Class C Shareholder") for the Cash Amount (the "Class C Retraction Amount").
Notice of Class C Retraction
27.9 A Class C Shareholder must deliver a Notice of Class C Retraction to the
registered office of the Company in order to exercise his, her or its Class C Retraction Right.
Satisfaction of Retraction Right
27.10 Upon receipt by Company of a Notice of Class C Retraction and such additional documents and instruments as the Company may reasonably require, the Company shall redeem the Tendered Class C
Shares on or prior to the Specified Class C Retraction Date. The Company will deliver or cause to be delivered to the Tendering Class C Shareholder, at the address of the holder recorded in the register of the Company for the Class C Shares or at
the address specified in the holder's Notice of Class C Retraction, the Class C Retraction Amount, and such delivery of such Class C Retraction Amount by or on behalf of the Company, will be deemed to be payment of and will satisfy and discharge all
liability for the Class C Retraction Right so exercised.
27.11 Each Tendering Class C Shareholder shall continue to own each Class C Share subject to any Notice of Class C Retraction, and be treated as a Class C
Shareholder with respect to each such Class C Share for all other purposes of these Articles, until such Class C Share has been redeemed by the Company in accordance with §27.8 to §27.13.
27.12 Notwithstanding anything to the contrary set forth herein, the Company will not be obligated to redeem Tendered Class C Shares to the extent that such redemption would be contrary to solvency
requirements or other provisions of applicable Law.
Withholding Taxes
27.13 Each Tendering Class C
Shareholder shall be required to pay to the Company the amount of any tax withholding due upon the redemption of Tendered Class C Shares pursuant to §27.8 to §27.10 and will be deemed to have authorized the Company to retain such portion
of the Class C Retraction Amount as the Company reasonably determines is necessary to satisfy its tax withholding obligations. Before making any tax withholding pursuant to this §27.13, the Company shall give each Tendering Class C Shareholder
within three (3) Business Days after the Company's receipt of a Notice of Class C Retraction from such Tendering Class C Shareholder, notice of the Company's good faith estimate of the amount of any anticipated tax withholding (together with the
legal basis therefor) due upon the redemption of the Tendered Class C Shares subject to such Notice of Class C Retraction, provide the Tendering Class C Shareholder with sufficient opportunity to provide any forms or other documentation or take such
other steps in order to avoid or reduce such tax withholding, and reasonably cooperate with the Tendering Class C Shareholder in good faith to attempt to reduce any amounts that would otherwise be withheld pursuant to this §27.13; provided that
any determination with respect to the tax withholding shall be made by the Company in its sole discretion exercised in good faith.
Liquidation Rights
27.14 Upon any Liquidation Event, including where substantially concurrent with a BIP Liquidation Event, the Class C Shareholders shall be entitled to receive on the Liquidation Date the assets and
property of the Company remaining, if any, after the prior payments of the amounts set forth in §27.15.
27.15 The rights of the Class C
Shareholders to receive the amounts set forth in §27.14 is subject to the prior payment of the amounts set forth in §25.26(b) and §25.26(c) and the prior rights of holders of all classes and series of Preferred Shares, Class A Shares,
Class B Shares and any other class of shares ranking in priority or rateably with the Class C Shares.
Transfer Restrictions
27.16 The Class C Shares may not be Transferred to any Person other than to BIP or a Person Controlled by BIP. If any Class C Shares are Transferred in contravention of the preceding sentence, (i)
such Transfer shall be null and void, and the Company shall not register or otherwise recognize the Transfer of the Class C Shares to the transferee, (ii) any payment by the Company on the Class C Shares so Transferred shall be prohibited and any
such payment shall be forfeited, and (iii) any rights that an ineligible transferee may have as a result of being a holder of Class C Shares shall be null and void, in each case, until such time as such Transfer is cancelled.
PART 28
SPECIAL
RIGHTS AND RESTRICTIONS
CLASS A SENIOR PREFERRED SHARES
Special Rights and Restrictions
28.1 Subject to the rights, if any, of the holders of issued shares of the Company, the Class A Senior Preferred Shares as a class shall have attached
thereto the special rights and restrictions specified in this Part 28.
Directors' Right to Issue in One or More Series
28.2 The Class A Senior Preferred Shares may be issued at any time or from time to time in one or more series. Before any Class A Senior Preferred Shares of a series are issued, the board of
directors shall, subject to the Business Corporations Act (British Columbia), by resolution:
(a) determine the maximum
number of shares of any of those series of shares that the Company is authorized to issue, determine that there is no maximum number or, if none of the shares of that series is issued, alter any determination so made, and authorize the alteration of
the notice of articles accordingly;
(b) alter the articles, and authorize the alteration of the notice of articles, to create an
identifying name by which the shares of any of those series of shares may be identified or, if none of the shares of that series is issued, to alter any such identifying name so created; and
(c) alter the articles, and authorize the alteration of the notice of articles accordingly, to attach special rights or restrictions to the shares of any of those series of shares, including,
but without in any way limiting or restricting the generality of the foregoing, the rate or amount of dividends, whether cumulative, non-cumulative or partially cumulative, the dates, places and currencies of payment thereof, the consideration for,
and the terms and conditions of, any purchase, retraction or redemption thereof, including redemption after a fixed term or at a premium, conversion or exchange rights, the terms and conditions of any share purchase plan or sinking fund, the
restrictions respecting payment of dividends on, or the repayment of capital in respect of, any other shares of the Company and voting rights and restrictions but no special right or restriction so created, defined or attached shall contravene the
provisions of §28.3 and §28.4, or, if none of the shares of that series is issued, to alter any such special rights or restrictions.
Ranking of the Class A Senior Preferred Shares
28.3 The Class A Senior Preferred Shares of each series shall, as to the payment of dividends and return of capital in a Liquidation Event, rank on a
parity with the Class A Senior Preferred Shares of every other series and senior to the Class B Junior Preferred Shares, the Class A Shares, the Class B Shares and the Class C Shares and over any other shares ranking junior to the Preferred Shares
with respect to priority in payment of dividends and return of capital in a Liquidation Event.
Voting
28.4 Except as hereinafter referred to or as required
by Law or unless provision is made in the articles of the Company relating to any series of Class A Senior Preferred Shares that such series is entitled to vote, the holders of the Class A Senior Preferred Shares as a class shall not be entitled as
such to receive notice of, to attend or to vote at any meeting of the shareholders of the Company.
Amendment with Approval of Holder of Class A Senior Preferred Shares
28.5 In addition to any other approval required by Law, the rights, privileges, restrictions and conditions attached to the Class A Senior Preferred
Shares as a class may be added to, changed or removed but only with the approval of the holders of the Class A Senior Preferred Shares given as hereinafter specified.
28.6 The approval of the holders of the Class A Senior Preferred Shares to add to, change or remove any right, privilege, restriction or condition attaching to the Class A Senior Preferred Shares
as a class or in respect of any other matter requiring the consent of the holders of the Class A Senior Preferred Shares may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be given by
resolution signed by all the holders of the Class A Senior Preferred Shares or passed by the affirmative vote of at least two thirds of the votes cast at a meeting of the holders of the Class A Senior Preferred Shares duly called for that purpose.
On every poll taken at every meeting of the holders of the Class A Senior Preferred Shares as a class, or at any joint meeting of the holders of two or more series of Class A Senior Preferred Shares, each holder of Class A Senior Preferred Shares
entitled to vote thereat shall have one vote in respect of each Class A Senior Preferred Share held.
PART 29
SPECIAL RIGHTS AND RESTRICTIONS
CLASS B JUNIOR PREFERRED SHARES
Special Rights and Restrictions
29.1 Subject to the rights, if any, of the holders of issued shares of the
Company, the Class B Junior Preferred Shares as a class shall have attached thereto the special rights and restrictions specified in this Part 29.
Directors' Right to Issue in One or More Series
29.2 The Class B Junior Preferred Shares may be issued at any time or from time to time in one or more series. Before any Class B Junior Preferred Shares
of a series are issued, the board of directors shall, subject to the Business Corporations Act (British Columbia), by resolution:
(a) determine the maximum number of shares of any of those series of shares that the Company is authorized to issue, determine that
there is no maximum number or, if none of the shares of that series is issued, alter any determination so made, and authorize the alteration of the notice of articles accordingly;
(b) alter the articles, and authorize the alteration of the notice of articles, to create an identifying name by which the shares of any of those series of shares may be identified or, if none
of the shares of that series is issued, to alter any such identifying name so created; and
(c) alter the articles, and authorize
the alteration of the notice of articles accordingly, to attach special rights or restrictions to the shares of any of those series of shares, including, but without in any way limiting or restricting the generality of the foregoing, the rate or
amount of dividends, whether cumulative, non-cumulative or partially cumulative, the dates, places and currencies of payment thereof, the consideration for, and the terms and conditions of, any purchase, retraction or redemption thereof, including
redemption after a fixed term or at a premium, conversion or exchange rights, the terms and conditions of any share purchase plan or sinking fund, the restrictions respecting payment of dividends on, or the repayment of capital in respect of, any
other shares of the Company and voting rights and restrictions but no special right or restriction so created, defined or attached shall contravene the provisions of §29.3 and §29.4, or, if none of the shares of that series is issued, to
alter any such special rights or restrictions.
Ranking of the Class B Junior Preferred Shares
29.3 The
Class B Junior Preferred Shares of each series shall, as to the payment of dividends and return of capital in a Liquidation Event, rank on a parity with the Class B Junior Preferred Shares of every other series, junior to the Class A Senior
Preferred Shares and senior to the Class A Shares, the Class B Shares and the Class C Shares and over any other shares ranking junior to the Preferred Shares with respect to priority in payment of dividends and in return of capital in a Liquidation
Event.
Voting
29.4 Except as hereinafter referred to or as required by Law or unless provision is made in
the articles of the Company relating to any series of Class B Junior Preferred Shares that such series is entitled to vote, the holders of the Class B Junior Preferred Shares as a class shall not be entitled as such to receive notice of, to attend
or to vote at any meeting of the shareholders of the Company.
Amendment with Approval of Holder of Class B Junior Preferred Shares
29.5 In addition to any other approval required by Law, the rights, privileges, restrictions and conditions attached to the Class B Junior Preferred Shares as a class may be added to, changed or
removed but only with the approval of the holders of the Class B Junior Preferred Shares given as hereinafter specified.
29.6 The approval of the
holders of the Class B Junior Preferred Shares to add to, change or remove any right, privilege, restriction or condition attaching to the Class
B Junior Preferred Shares as a class or in respect
of any other matter requiring the consent of the holders of the Class B Junior Preferred Shares may be given in such manner as may then be required by Law, subject to a minimum requirement that such approval be given by resolution signed by all the
holders of the Class B Junior Preferred Shares or passed by the affirmative vote of at least two thirds of the votes cast at a meeting of the holders of the Class B Junior Preferred Shares duly called for that purpose. On every poll taken at every
meeting of the holders of the Class B Junior Preferred Shares as a class, or at any joint meeting of the holders of two or more series of Class B Junior Preferred Shares, each holder of Class B Junior Preferred Shares entitled to vote thereat shall
have one vote in respect of each Class B Junior Preferred Share held.
EXHIBIT “A”
Notice of Exchange
NOTICE OF EXCHANGE
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To:
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Computershare Trust Company of Canada (the “Transfer Agent”)
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PLEASE DELIVER YOUR EXCHANGE REQUEST BY ONE OF THE OPTIONS BELOW:
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Via PDF Email (recommended)*:
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Via Mail:
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onlinedeposits@computershare.com
*You can either scan this document via PDF or take a picture with your phone (send a CLEAR picture of all pages, both front and back within the same email)
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Computershare Trust Company of Canada
P.O. Box 7021
31 Adelaide St E
Toronto, ON M5C 3H2
Attn: Corporate Actions
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This notice is given pursuant to Section 26.12 of the articles (the “Articles”) of Brookfield
Infrastructure Corporation (the “Company”). All capitalized words and expressions used in this notice that are defined in the Articles have the meanings ascribed to such words and expressions in the Articles.
The undersigned hereby notifies the Company that the undersigned desires to have the Company redeem in accordance with the Articles:
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all Class A Share(s) registered in the name of the undersigned; or
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_____ Class A Share(s) registered in the name of the undersigned.
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The undersigned acknowledges the Exchange-Redemption Call Right of Brookfield Infrastructure Partners L.P. (“BIP”) or an affiliate of BIP to
acquire all, but not less than all, of the Tendered Class A Shares from the undersigned and that this notice is and will be deemed to be an offer by the undersigned to sell the Tendered Class A Shares to BIP in accordance with the
Exchange-Redemption Call Right on or prior to the Specified Exchange Date for the Exchange Consideration and on the other terms and conditions set out in the Articles.
The undersigned acknowledges that the Company will not be obligated to redeem Tendered Class A Shares to the extent that such redemption would be
contrary to solvency requirements or other provisions of applicable Law. If the Company believes that it would not be permitted by any such requirements or other provisions to redeem the Tendered Class A Shares, provided that BIP has not
exercised its Exchange-Redemption Call Right with respect to the Tendered Class A Shares, the Company will only be obligated to redeem the maximum number of Tendered Class A Shares (rounded down to a whole number of Class A Shares)
that would not be contrary to such provisions.
The undersigned hereby represents and warrants to the Company and BIP that the undersigned has good title
to, and owns, the Class A Share(s) to be acquired by the Company, BIP or an affiliate of BIP as the case may be, free and clear of all liens, claims and encumbrances whatsoever.
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(Date)
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(Signature of Tendering
Class A Shareholder)
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(Guarantee of
Signature)
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CURRENCY ELECTION
(only if exchange or acquisition of the Tendered Class A Shares is satisfied by the Cash Amount)
Shareholders domiciled in Canada will receive the Cash Amount in Canadian
dollars (CAD) and shareholders domiciled in the United States and all other countries will receive the Cash Amount in U.S. dollars (USD), unless otherwise elected below;
☐ Issue my cash entitlement payment(s) in U.S. dollars (USD).
☐ Issue my cash
entitlement payment(s) in Canadian dollars (CAD).
☐ Issue my cash entitlement payment(s) in Australian dollars (AUD).
By electing to receive payment in another currency, the undersigned acknowledges that
(a) the exchange rate used will be the rate established by Computershare, in its capacity as foreign exchange service provider to the Company, on the date the funds are converted; (b) the risk of any fluctuation in such rate will be borne
by the undersigned; and (c) Computershare may earn commercially reasonable spread between its exchange rate and the rate used by any counterparty from which it purchases the elected currency.
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Payment Delivery Instruction
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☐ Please check this box if the Cash Amount, if applicable, resulting from the exchange or
acquisition of the Tendered Class A Shares is to be paid by cheque and mailed to the last address of the Tendering Class A Shareholder as it appears on the register of the Company or as instructed below in Exhibit A. ALL CHEQUE
PAYMENTS WILL BE ISSUED TO THE REGISTERED NAME AS IT CURRENTLY APPEARS.
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☐ Please check this box if the Cash Amount, if applicable, resulting from the exchange or
acquisition of the Tendered Class A Shares is to be paid by cheque and held for pick-up by the Tendering Class A Shareholder at the principal transfer office of the Transfer Agent in Toronto,
Ontario.
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☐ Please check this box if the Cash Amount, if applicable, resulting from the exchange or
acquisition of the Tendered Class A Shares is to be paid electronically to the Tendering Class A Shareholder using the electronic payment information as it appears on the dividend register of the Company or as instructed below in Exhibit
B.
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NOTE:
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This panel must be completed and such additional documents as the Transfer Agent may require must be deposited
with the Transfer Agent at its principal transfer office in Toronto, Ontario. The BIP Units Amount and any payment resulting from the exchange or acquisition of the Tendered Class A Shares will be issued and registered in, and made payable to
respectively, the name of the Tendering Class A Shareholder as it appears on the register of the Company and the BIP Units Amount and payment resulting from such exchange or acquisition will be delivered to such Tendering Class A
Shareholder as indicated above, unless the form appearing immediately below is duly completed.
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EXHIBIT A:
Cheque Delivery Information
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Date:
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Name of
Person in Whose Name Payment is to be Delivered
(please print)
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Street
Address or P.O. Box
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City,
Province and Postal Code
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Signature of
Tendering Class A Shareholder
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EXHIBIT B
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BROOKFIELD INFRASTRUCTURE CORPORATION
EXCHANGE WIRE PAYMENT FORM*
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**Beneficiary Name(s) that appears on the account at your financial institution – this MUST be the same name and address
that your shares are registered to
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**Beneficiary Address (Note: PO Boxes will not be accepted)
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**City
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**Province/State
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**Postal Code/Zip Code
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**Beneficiary Bank/Financial Institution
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**Bank Address
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**City
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**Province/State
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**Postal Code/Zip Code
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PLEASE ONLY COMPLETE THE APPLICABLE BOXES BELOW, AS PROVIDED BY YOUR FINANCIAL INSTITUTION. YOU ARE NOT REQUIRED TO COMPLETE ALL BOXES
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**Bank Account No.
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Bank No. & Transit No. (Canadian Banks)
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ABA/Routing No. (US Banks)
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(3 digits & 5 digits)
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(9 digits)
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SWIFT or BIC Code
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IBAN Number
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Sort Code (GBP)
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(11 characters – if you only have eight, put ‘XXX’ for the last three)
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Additional Notes and special routing instructions:
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*PLEASE NOTE THAT THERE IS A $100 BANKING FEE ON WIRE PAYMENTS. ALTERNATIVELY, CHEQUE PAYMENTS ARE
ISSUED AT NO ADDITIONAL COST. IF WIRE DETAILS ARE INCORRECT OR INCOMPLETE, COMPUTERSHARE WILL ATTEMPT TO CONTACT YOU AND CORRECT THE ISSUE. HOWEVER, IF WE CANNOT CORRECT THE ISSUE PROMPTLY, A CHEQUE WILL BE AUTOMATICALLY ISSUED AND MAILED TO THE
ADDRESS ON RECORD. NO FEES WILL BE CHARGED
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**MANDATORY FIELD
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Please provide email address and phone number in the event that we need to contact you for corrective
measures:
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EMAIL ADDRESS: _____________________________________________ PHONE NUMBER:
________________
EXHIBIT “B”
Notice of Class A Redemption
NOTICE OF CLASS A REDEMPTION
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To:
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Class A Shareholders of Brookfield Infrastructure Corporation (the “Company”)
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This notice is given pursuant to Section 26.19 of the articles of the Company (the “Articles”). All capitalized
words and expressions used in this notice that are defined in the Articles have the meanings ascribed to such words and expressions in such Articles.
The
Company hereby notifies the Class A Shareholders that the Company desires to redeem all of the issued and outstanding Class A Shares in accordance with the Articles.
The Company acknowledges that this notice is and will be deemed to be an irrevocable offer by the Company to redeem all of the Class A Shares on the
Specified Class A Redemption Date for the Redemption Consideration and on the other terms and conditions set out in the Articles.
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Brookfield Infrastructure Corporation
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(Date)
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EXHIBIT “C”
Notice of Class B Retraction
NOTICE OF CLASS B RETRACTION
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To:
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Brookfield Infrastructure Corporation (the “Company”)
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This notice is given pursuant to Section 26.12 of the articles of the Company (the “Articles”). All capitalized words and expressions
used in this notice that are defined in the Articles have the meanings ascribed to such words and expressions in such Articles.
The undersigned hereby
notifies the Company that the undersigned desires to have the Company redeem in accordance with the Articles:
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all Class B Share(s) registered in the name of the undersigned; or
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______ Class B Share(s) registered in the name of the undersigned.
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The undersigned acknowledges that this notice is and will be deemed to be an irrevocable offer by the undersigned to sell the Tendered Class B Shares to
the Company on or prior to the Specified Class B Retraction Date for the Class B Retraction Amount and on the other terms and conditions set out in the Articles.
The undersigned acknowledges that the Company will not be obligated to redeem Tendered Class B Shares to the extent that such redemption would be
contrary to solvency requirements or other provisions of applicable Law. If the Company believes that it would not be permitted by any such requirements or other provisions to redeem the Tendered Class B Shares, the Company will only be
obligated to redeem the maximum number of Tendered Class B Shares (rounded down to a whole number of Class B Shares) that would not be contrary to such provisions.
The undersigned hereby represents and warrants to the Company that the undersigned has good title to, and owns, the Class B Share(s) to be acquired by
the Company, free and clear of all liens, claims and encumbrances whatsoever.
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(Date)
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(Signature of Tendering Class B Shareholder)
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(Guarantee of Signature)
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☐ Please check this box if the Cash Amount resulting from the acquisition of the Tendered
Class B Shares is to be mailed to the last address of the Tendering Class B Shareholder as it appears on the register of the Company.
NOTE: This panel must be completed and this certificate, together with such additional documents as
the Company may require, must be delivered to the registered office of the Company in Vancouver, British Columbia. Any payment resulting from the acquisition of the Tendered Class B Shares will be made payable to the name of the Tendering
Class B Shareholder as it appears on the register of the Company and payment resulting from such acquisition will be delivered to such Tendering Class B Shareholder as indicated above, unless the form appearing immediately below is duly
completed.
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Name of Person in Whose Name Payment is to be Delivered (please print)
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Street Address or P.O. Box
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City, Province and Postal Code
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Signature of Tendering Class B Shareholder
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NOTE: If this Notice of Class B Retraction is for less than all of the Class B Share(s) represented by this
certificate, a certificate representing the remaining Class B Shares of the Company will be issued and registered in the name of the Tendering Class B Shareholder as it appears on the register of the Company.
EXHIBIT “D”
Notice of Class C Retraction
NOTICE OF CLASS C RETRACTION
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To:
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Brookfield Infrastructure Corporation (the “Company”)
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This notice is given pursuant to Section 27.9 of the articles of the Company (the “Articles”). All capitalized words and expressions
used in this notice that are defined in the Articles have the meanings ascribed to such words and expressions in such Articles.
The undersigned hereby
notifies the Company that the undersigned desires to have the Company redeem in accordance with the Articles:
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all Class C Share(s) registered in the name of the undersigned; or
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______ Class C Share(s) registered in the name of the undersigned.
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The undersigned acknowledges that this notice is and will be deemed to be an irrevocable offer by the undersigned to sell the Tendered Class C Shares to
the Company on or prior to the Specified Class C Retraction Date for the Class C Retraction Amount and on the other terms and conditions set out in the Articles.
The undersigned acknowledges that the Company will not be obligated to redeem Tendered Class C Shares to the extent that such redemption would be
contrary to solvency requirements or other provisions of applicable Law. If the Company believes that it would not be permitted by any such requirements or other provisions to redeem the Tendered Class C Shares, the Company will only be
obligated to redeem the maximum number of Tendered Class C Shares (rounded down to a whole number of Class C Shares) that would not be contrary to such provisions.
The undersigned hereby represents and warrants to the Company that the undersigned has good title to, and owns, the Class C Share(s) to be acquired by
the Company, free and clear of all liens, claims and encumbrances whatsoever.
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(Date)
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(Signature of Tendering Class C Shareholder)
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(Guarantee of Signature)
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☐ Please check this box if the Cash Amount resulting from the acquisition of the Tendered
Class C Shares is to be mailed to the last address of the Tendering Class C Shareholder as it appears on the register of the Company.
NOTE: This panel must be completed and this certificate, together with such additional documents as
the Company may require, must be delivered to the registered office of the Company in Vancouver, British Columbia. Any payment resulting from the acquisition of the Tendered Class C Shares will be made payable to the name of the Tendering
Class C Shareholder as it appears on the register of the Company and payment resulting from such acquisition will be delivered to such Tendering Class C Shareholder as indicated above, unless the form appearing immediately below is duly
completed.
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Name of Person in Whose Name Payment is to be Delivered (please print)
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Street Address or P.O. Box
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City, Province and Postal Code
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Signature of Tendering Class C Shareholder
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NOTE: If this Notice of Class C Retraction is for less than all of the Class C Share(s) represented by this
certificate, a certificate representing the remaining Class C Shares of the Company will be issued and registered in the name of the Tendering Class C Shareholder as it appears on the register of the Company.
EXHIBIT B-1
Authorized Signatures for Brookfield Infrastructure Corporation
("BIPC")
under Rights Agreement dated as of March 31, 2020
[Omitted]
EXHIBIT B-2
Authorized Signatures for Brookfield Asset Management Inc. ("BAM")
under
Rights Agreement dated as of March 31, 2020
[Omitted]
EXHIBIT C
Terms of Compensation of Rights Agent
[Omitted]
EXHIBIT D-1
Form of
Company Notice
To: Brookfield Asset Management Inc.
Attn: Investor Relations
Brookfield Place, Suite 300
181 Bay Street, P.O. Box 762
Toronto, Ontario, Canada M5J 2T3
Phone: 1-866-989-0311
Email:
enquiries@brookfield.com
Brookfield Infrastructure Partners L.P.
73 Front Street, 5th Floor
Hamilton, HM 12, Bermuda
Phone: (441)
294-3309
E-mail: bip.enquiries@brookfield.com
Wilmington Trust, National Association
Attn: Project Remus Administrator
50 South Sixth Street, Suite
1290
Minneapolis, MN 55402
Phone: (203) 453-1318
Fax: (203) 453-1183
Email:
rlreynolds@wilmingtontrust.com
With a copy to the following Email address: restructuring@wilmingtontrust.com
Wilmington Trust, National Association:
Reference is made to that certain Rights
Agreement, dated as of March 31, 2020, between Brookfield Asset Management Inc., and Wilmington Trust, National Association (the "Rights Agreement"). Capitalized terms that are not otherwise defined in this Exchanging Class A Shareholder
Notice shall have the meanings given to them in the Rights Agreement.
THE DTC FREE DELIVERY OF THE SUBJECT CLASS A SHARES SHOULD BE DIRECTED TO THE RIGHTS AGENT'S DTC PARTICIPANT NUMBER 990,
FOR FURTHER CREDIT OF THE RECEIVED CLASS A SHARE ACCOUNT, ACCOUNT NUMBER [WT TO INSERT].
The Company represents and warrants that, with respect to ______________ Subject Class A
Share(s):
(i) the Company has not satisfied its obligation under sections 25.11 and 25.13 of the Company's
Articles by delivering the BIP Units Amount or Cash Amount on the applicable Specified Exchange Date; and
(ii) BIP has not, upon its election in its sole and absolute discretion, acquired such Subject Class A Share(s)
from the Exchanging Class A Shareholder and delivered the BIP Units Amount or Cash Amount in exchange therefor pursuant to section 25.23 of the Company's Articles on the applicable Specified Exchange Date.
The BIP Units Amount and the Cash Amount for such Subject Class A Share(s) are as follows:
BIP Units Amount:_______________________
Cash Amount:____________________________
The BIP Units Amount or the Cash Amount, as applicable, shall be issued or paid to the Exchanging
Class A Shareholder, whose information is as follows:
Please insert social security
or other identifying number
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(Please print name and address)
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Delivery instructions for BIP Units Amount:
[Please insert complete instructions
including recipient's DTC participant number and the account number at the participant.]
Delivery instructions for Cash Amount:
[Please insert complete wire transfer
instructions.]
Dated: _____________ __, ______
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BROOKFIELD INFRASTRUCTURE CORPORATION, a British Columbia corporation
By:________________________
Name:
Title:
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EXHIBIT D-2
Form of Exchanging Class A Shareholder Notice
To: Brookfield Asset Management Inc.
Attn: Investor Relations
Brookfield Place, Suite 300
181 Bay Street, P.O. Box 762
Toronto, Ontario, Canada M5J 2T3
Phone: 1-866-989-0311
Email: enquiries@brookfield.com
Wilmington Trust, National
Association
Attn: Project Remus Administrator
50 South Sixth
Street, Suite 1290
Minneapolis, MN 55402
Phone: (203)
453-1318
Fax: (203) 453-1183
Email:
rlreynolds@wilmingtontrust.com
With a copy to the following Email address:
restructuring@wilmingtontrust.com
Wilmington Trust, National Association:
Reference is made to that certain Rights
Agreement, dated as of March 31, 2020, between Brookfield Asset Management Inc., and Wilmington Trust, National Association (the "Rights Agreement"). Capitalized terms that are not otherwise defined in this Exchanging Class A Shareholder
Notice shall have the meanings given to them in the Rights Agreement.
THE DTC FREE DELIVERY OF THE SUBJECT CLASS A SHARES SHOULD BE DIRECTED TO THE RIGHTS AGENT'S DTC PARTICIPANT NUMBER 990,
FOR FURTHER CREDIT OF THE RECEIVED CLASS A SHARE ACCOUNT, ACCOUNT NUMBER [WT TO INSERT].
The undersigned (the "Holder") represents and warrants that, with respect to ______________
Subject Class A Share(s):
(i) the Company has not satisfied its obligation under sections 25.11 and 25.13 of
the Company's Articles by delivering the Cash Amount on the applicable Specified Exchange Date; and
(ii) BIP
has not, upon its election in its sole and absolute discretion, acquired such Subject Class A Share(s) from the Exchanging Class A Shareholder and delivered the BIP Units Amount or Cash Amount in exchange therefor pursuant to section 25.23 of the
Company's Articles on the applicable Specified Exchange Date.
Pursuant to and in accordance with the terms and conditions of the Rights Agreement, the Holder irrevocably elects to exercise its
Secondary Exchange Rights for the Holder's Subject Class A Shares identified above. The BIP Units Amount or the Cash Amount, as applicable, shall be issued or paid to:
Please insert social security
or
other identifying number
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(Please print name and address)
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Delivery instructions for BIP Units Amount:
[Please
insert complete instructions including recipient's DTC participant number and the account number at the participant.]
Delivery instructions for Cash Amount:
[Please insert
complete wire transfer instructions.]
Dated: _____________ __, ______
__________________________________
Signature
Signature Medallion Guaranteed:
Signatures should be
guaranteed by an eligible guarantor institution (bank, stock broker or savings and loan association with membership in an approved signature medallion program).
BROOKFIELD ASSET MANAGEMENT INC.
- and -
BROOKFIELD INFRASTRUCTURE CORPORATION
- and
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BROOKFIELD INFRASTRUCTURE PARTNERS L.P.
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REGISTRATION RIGHTS
AGREEMENT
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March 31, 2020
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TABLE OF CONTENTS
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Page
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ARTICLE 1 INTERPRETATION
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1
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1.1 Definitions
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1
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1.2 Headings and Table of Contents
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5
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1.3 Interpretation
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5
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1.4 Invalidity of Provisions
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6
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1.5 Entire Agreement
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6
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1.6 Waiver, Amendment
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6
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1.7 Governing Law
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7
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ARTICLE 2 REGISTRATION RIGHTS
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7
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2.1 Demand Registration
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7
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2.2 Piggyback Registrations
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10
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2.3 Short-Form Filings
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11
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2.4 Registration Procedures
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12
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2.5 Suspension of Dispositions
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17
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2.6 Registration Expenses
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17
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2.7 Indemnification
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18
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2.8 Transfer of Registration Rights
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21
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2.9 Current Public Information
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21
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2.10 Preservation of Rights
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22
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2.11 Obligations of BIP
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22
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ARTICLE 3 TERMINATION
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22
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3.1 Termination
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22
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ARTICLE 4 MISCELLANEOUS
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23
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4.1 Enurement
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23
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4.2 Notices
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23
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4.3 Authority
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24
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4.4 Further Assurances
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24
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4.5 Counterparts
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24
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-i-
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT made as of the 31st day of March, 2020
B E T W E E
N:
BROOKFIELD ASSET MANAGEMENT INC. ("Brookfield")
- and -
BROOKFIELD INFRASTRUCTURE CORPORATION ("BIPC")
-and -
BROOKFIELD
INFRASTRUCTURE PARTNERS L.P. ("BIP")
RECITALS:
WHEREAS, BIPC desires to provide the Holders (as defined herein) with the registration
rights specified in this Agreement with respect to Registrable Shares (as defined herein) on the terms and subject to the conditions set forth herein.
NOW THEREFORE in consideration of
the premises, mutual covenants and agreements contained in this Agreement and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties covenant and agree, each with the other, as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
The following
definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
1.1.1 "Adverse Effect" has the meaning assigned to such term in Section 2.1.5;
1.1.2 "Advice" has the meaning assigned to such term in Section 2.5;
1.1.3 "Affiliate" means, with respect to a Person, any other Person that, directly or indirectly, through one or more
intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person;
1.1.4 "Agreement"
means this Registration Rights Agreement;
1.1.5 "BIP" has the meaning assigned to such term in the preamble;
1.1.6 "BIPC" has the meaning assigned to such term in the preamble;
1.1.7 "Brookfield" has the meaning assigned to such term in the preamble;
1.1.8 "Business Day" means every day except a Saturday or Sunday, or a day which is a statutory or civic holiday in the
Province of Ontario or the State of New York;
1.1.9 "Canadian Commissions" means the securities commissions or other
securities regulatory authorities in each of the provinces and territories of Canada and any successor regulatory authorities having similar powers and, to the extent applicable, in any such province or territory, a federal securities commission or
similar regulatory authority;
1.1.10 "Canadian Securities Laws" means, collectively, the applicable securities
legislation, regulations, rules, policies, blanket rulings, decisions and orders of each of the provinces and territories of Canada and the Canadian Commissions;
1.1.11 "Control" means the control by one Person of another Person in accordance with the following: a Person ("A") controls another Person ("B") where A has the power to
determine the management and policies of B by contract or status (for example, the status of A being the general partner of B) or by virtue of the beneficial ownership of or control over a majority of the voting interests in B; and, for greater
certainty and without limitation, if A owns or has control over shares or other securities to which are attached more than 50% of the votes permitted to be cast in the election of directors to the Governing Body of B, or A is the general partner of
B, a limited partnership, then in each case A Controls B for this purpose; and the term "Controlled" has the corresponding meaning;
1.1.12 "Demand Registration" has the meaning assigned to such term in Section 2.1.1(a);
1.1.13 "Demand Request" has the meaning assigned to such term in Section 2.1.1(a);
1.1.14 "Demanding Shareholders" has the meaning assigned to such term in Section 2.1.1(a);
1.1.15 "Effective" means, in the case of a Registration Statement, a declaration by the SEC that such registration statement is effective, and in the case of a Prospectus, the issuance by
the applicable Canadian Commission of a receipt for the final prospectus;
1.1.16 "Effective Date" means the date a
Registration Statement or Prospectus becomes Effective;
1.1.17 "Excluded Registration" means a registration of (i) securities pursuant to one or more Demand Registrations pursuant
to Section 2.1 hereof, (ii) securities registered under the U.S. Securities Act on Form S-8, (iii) securities registered to effect the acquisition of, or combination with, another Person and (iv) securities pursuant to an exchange offer or any
employee benefit or dividend reinvestment plan;
1.1.18 "FINRA" means Financial Industry Regulatory Authority, Inc.;
1.1.19 "Governing Body" means (i) with respect to a corporation or limited company, the board of directors of such
corporation or limited company, (ii) with respect to a limited liability company, the manager(s), director(s) or managing partner(s) of such limited liability company, (iii) with respect to a partnership, the board, committee or other body of each
general partner or managing partner of such partnership that serves a similar function (or if any such general partner or managing partner is itself a partnership, the board, committee or other body of such general or managing partner's general or
managing partner that serves a similar function), and (iv) with respect to any other Person, the body of such Person that serves a similar function, and in the case of each of (i) through (iv) includes any committee or other subdivision of such body
and any Person to whom such body has delegated any power or authority, including any officer or managing director;
1.1.20 "Holder" means (i) Brookfield, (ii) any subsidiary of Brookfield holding Registrable Shares, and (iii) any direct or
indirect transferee of Brookfield or any of its subsidiaries who shall become a party to this Agreement in accordance with Section 2.8 and has agreed in writing to be bound by the terms of this Agreement, provided that "Holder" shall not
include BIPC and its subsidiaries;
1.1.21 "Inspectors" has the meaning assigned to such term in Section 2.4(m);
1.1.22 "Person" means any natural person, partnership, limited partnership, limited liability partnership, joint venture,
syndicate, sole proprietorship, company or corporation (with or without share capital), limited liability company, unlimited liability company, joint stock company, unincorporated association, trust, trustee, executor, administrator or other legal
personal representative, regulatory body or agency, government or governmental agency, authority or entity however designated or constituted and pronouns have a similarly extended meaning;
1.1.23 "Piggyback Registration" has the meaning assigned to such term in Section 2.2.1;
1.1.24 "POP Issuer" means an issuer eligible to use the POP System or equivalent system established from time to time by the
Canadian Commissions;
1.1.25 "POP System" means the prompt offering prospectus qualification system under National
Instrument 44-101 of the Canadian Securities Administrators entitled "Short Form Prospectus Distributions";
1.1.26 "Prospectus" means a prospectus (including a Shelf Prospectus), including any amendment or supplement thereto,
prepared in accordance with applicable Canadian Securities Laws for the purpose of qualifying securities for distribution to the public in any province or territory of Canada;
1.1.27 "Records" has the meaning assigned to such term in Section 2.4(m);
1.1.28 "register," "registered" and "registration" refers to (i) a registration effected by preparing and
filing a registration statement in compliance with the U.S. Securities Act, and the declaration or ordering of the effectiveness of such registration statement, and (ii) a qualification for distribution under Canadian Securities Laws effected by
preparing and filing a Prospectus;
1.1.29 "Registrable Shares" means the Shares owned by Holders from time to time,
including Shares issuable to Holders on the conversion of securities convertible, exchangeable or exercisable into Shares owned by a Holder, together with any securities owned by Holders issued with respect to such Shares by way of dividend or split
or in connection with a combination of shares, recapitalization, merger, consolidation, amalgamation, arrangement or other reorganization; provided, however, that Shares that, pursuant to Section 3.1, no longer have registration rights hereunder
shall not be considered Registrable Shares;
1.1.30 "Registration Statement" means a registration statement under the U.S.
Securities Act (which includes any preliminary prospectus, prospectus, prospectus supplement or free writing prospectus used in connection therewith);
1.1.31 "Requesting Holders" shall mean any Holder(s) requesting to have its (their) Registrable Shares included in any Demand Registration or Shelf Registration;
1.1.32 "Required Filing Date" has the meaning assigned to such term in Section 2.1.1(b);
1.1.33 "SEC" means the U.S. Securities and Exchange Commission or any other federal agency at the time administering the U.S.
Securities Act;
1.1.34 "Securities Laws" means Canadian Securities Laws and/or U.S. Securities Laws, as applicable;
1.1.35 "Seller Affiliates" has the meaning assigned to such term in Section 2.7.1;
1.1.36 "Shares" means class A subordinate voting shares of BIPC;
1.1.37 "Shelf Prospectus" means a shelf prospectus of BIPC filed with the Canadian Commissions under Canadian Securities Laws
for offers and secondary sales of Registrable Shares on a continuous basis;
1.1.38 "Shelf Registration" means a registration of the Registrable Shares under a registration statement pursuant to
Rule 415 under the U.S. Securities Act;
1.1.39 "Suspension Notice" has the meaning assigned to such term in Section
2.5;
1.1.40 "U.S. Exchange Act" means the United States Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations promulgated by the SEC thereunder;
1.1.41 "U.S. Securities
Act" means the United States Securities Act of 1933, as amended, or any similar federal statute and the rules and regulations promulgated by the SEC thereunder; and
1.1.42 "U.S. Securities Laws" means, collectively, the securities laws of the United States, including the U.S. Exchange Act, the U.S. Securities Act, state securities or "blue sky" laws
within the United States, and all rules, regulations and ordinances promulgated thereunder.
1.2 Headings and Table of Contents
The inclusion of headings and a table of contents in this Agreement are for convenience of reference only and will not affect the construction or interpretation hereof.
1.3 Interpretation
In this
Agreement, unless the context otherwise requires:
1.3.1 words importing the singular shall include the plural and vice versa,
words importing gender shall include all genders or the neuter, and words importing the neuter shall include all genders;
1.3.2 the words "include", "includes", "including", or any variations thereof, when following any general term or statement, are not
to be construed as limiting the general term or statement to the specific items or matters set forth or to similar items or matters, but rather as referring to all other items or matters that could reasonably fall within the broadest possible scope
of the general term or statement;
1.3.3 references to any Person include such Person's successors and permitted assigns;
1.3.4 except as otherwise provided in this Agreement, any reference in this Agreement to a statute, regulation, policy, rule or
instrument shall include, and shall be deemed to be a reference also to, all rules and regulations made under such statute, in the case of a statute, all amendments made to such statute, regulation, policy, rule or instrument and to any statute,
regulation, policy, rule or instrument that may be passed which has the effect of supplementing or superseding the statute, regulation, policy, rule or instrument so referred to;
1.3.5 any reference to this Agreement or any other agreement, document or instrument shall be construed as a reference to this
Agreement or, as the case may be, such other agreement, document or instrument as the same may have been, or may from time to time be, amended, varied, replaced, amended and restated, supplemented or otherwise modified;
1.3.6 in the event that any day on which any amount is to be determined or any action is required to be taken hereunder is not a
Business Day, then such amount shall be determined or such action shall be required to be taken at or before the requisite time on the next succeeding day that is a Business Day; and
1.3.7 except where otherwise expressly provided, all amounts in this Agreement are stated and shall be paid in U.S. currency.
1.4 Invalidity of Provisions
Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent
jurisdiction will not affect the validity or enforceability of any other provision hereof. To the extent permitted by applicable law, the parties waive any provision of law which renders any provision of this Agreement invalid or unenforceable in
any respect. The parties will engage in good faith negotiations to replace any provision which is declared invalid or unenforceable with a valid and enforceable provision, the economic effect of which comes as close as possible to that of the
invalid or unenforceable provision which it replaces.
1.5 Entire Agreement
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement. There are no warranties, conditions, or representations (including any
that may be implied by statute) and there are no agreements in connection with such subject matter except as specifically set forth or referred to in this Agreement. No reliance is placed on any warranty, representation, opinion, advice or
assertion of fact made either prior to, contemporaneous with, or after entering into this Agreement, or any amendment or supplement hereto, by any party to this Agreement or its directors, officers, employees or agents, to any other party to this
Agreement or its directors, officers, employees or agents, except to the extent that the same has been reduced to writing and included as a term of this Agreement, and none of the parties to this Agreement has been induced to enter into this
Agreement or any amendment or supplement by reason of any such warranty, representation, opinion, advice or assertion of fact. Accordingly, there will be no liability, either in tort or in contract, assessed in relation to any such warranty,
representation, opinion, advice or assertion of fact, except to the extent contemplated above.
1.6 Waiver, Amendment
Except as expressly provided in this Agreement, no waiver of this Agreement will be binding
unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement will constitute a waiver of any other provision nor will any waiver of any provision of this Agreement constitute a continuing waiver
unless otherwise expressly provided. A party's failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or
further exercise of that right or the exercise of any other right. This Agreement may not be amended or modified in any respect except by a written agreement signed by BIPC, BIP and Brookfield (so long as Brookfield owns any Shares) and the Holders
of a majority of the then outstanding Registrable Shares.
1.7 Governing Law
This Agreement will be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party irrevocably
attorns and submits to the non-exclusive jurisdiction of the Ontario courts situated in the City of Toronto and waives objection to the venue of any proceeding in such court or any argument that such court provides an inconvenient forum.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Demand Registration
2.1.1 Request for Registration
(a) Commencing on the date hereof, any Holder shall have the right to require BIPC to file a Registration Statement and/or a Prospectus for a public offering of all or part of
its Registrable Shares (a "Demand Registration"), by delivering to BIPC written notice stating that such right is being exercised, naming the Holders whose Registrable Shares are to be included in such registration (collectively, the
"Demanding Shareholders"), specifying the number of each such Demanding Shareholder's Registrable Shares to be included in such registration and, subject to Section 2.1.3 hereof, describing the intended method of distribution thereof (a
"Demand Request").
(b) Each Demand Request shall specify the aggregate number of
Registrable Shares proposed to be sold. Subject to Section 2.1.6, BIPC shall file a Registration Statement and/or Prospectus in respect of a Demand Registration as soon as practicable and, in any event, within forty-five (45) days after
receiving a Demand Request (the "Required Filing Date") and shall use reasonable best efforts to cause the same to be declared Effective as promptly as practicable after such filing; provided, however, that:
(i) BIPC shall not be obligated to file a Registration Statement or a Prospectus in respect of a Demand Registration pursuant to Section 2.1.1(a) within sixty (60) days after the
Effective Date of a previous Demand Registration, other than a Shelf Registration pursuant to this Article 2; and
(ii) BIPC shall not be obligated to file a Registration Statement or a Prospectus in respect of a Demand Registration pursuant to Section 2.1.1(a) unless the Demand Request is
for (A) a number of Registrable Shares with a market value that is equal to at least $50,000,000 as of the date of such Demand Request, or (B) all of the Registrable Shares then held by the Demanding Shareholder.
2.1.2 Shelf Registration. With respect to any Demand Registration, the Requesting Holders may request BIPC to file a
Shelf Prospectus or effect a Shelf Registration, provided that BIPC is permitted to do so under Canadian Securities Laws and/or U.S. Securities Laws, as applicable.
2.1.3 Selection of Underwriters. At the request of a Requesting Holder, the offering of Registrable Shares pursuant to a Demand Registration shall be in the form of a "firm commitment"
underwritten offering. The Requesting Holder shall select the investment banking firm or firms to manage the underwritten offering; provided that such selection shall be subject to the consent of BIPC, which consent shall not be unreasonably
withheld or delayed. No Holder may participate in any registration pursuant to Section 2.1.1 unless such Holder (a) agrees to sell such Holder's Registrable Shares on the basis provided in any underwriting arrangements described above and (b)
completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided, however, that no such Holder shall be required
to make any representations or warranties in connection with any such registration other than representations and warranties as to (i) such Holder's ownership of Registrable Shares to be transferred free and clear of all liens, claims, and
encumbrances, (ii) such Holder's power and authority to effect such transfer, and (iii) such matters pertaining to compliance with Securities Laws as may be reasonably requested; provided, further, however, that the obligation of such Holder to
indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Holders selling Registrable Shares, and the liability of each such Holder will be in proportion thereto, and provided, further, that such
liability will be limited to the net amount received by such Holder from the sale of its Registrable Shares pursuant to such registration.
2.1.4 Rights of Non-Requesting Holders. Upon receipt of any Demand Request, BIPC shall promptly (but in any event within
ten (10) days) give written notice of such proposed Demand Registration to all other Holders, who shall have the right, exercisable by written notice to BIPC within twenty (20) days of their receipt of BIPC's notice, to elect to include in such
Demand Registration such portion of their Registrable Shares as they may request. All Holders requesting to have their Registrable Shares included in a Demand Registration in accordance with the preceding sentence and all Demanding
Shareholders shall be deemed to be "Requesting Holders" for purposes of this Section 2.1. BIPC shall also have the right to issue and sell Shares in such Demand Registration, subject to Section 2.1.5.
2.1.5 Priority on Demand Registrations. No securities to be sold for the account of any Person (including BIPC) other than a Requesting Holder shall be included in a Demand Registration
unless the managing underwriter or underwriters shall advise the Requesting Holders in writing that the inclusion of such securities will not adversely affect the price, timing or distribution of the offering or otherwise adversely affect its
success (an "Adverse Effect"). Furthermore, if the managing underwriter or underwriters shall advise the Requesting Holders that, even after exclusion of all securities of other Persons (including BIPC) pursuant to the immediately
preceding sentence, the amount of Registrable Shares proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause an Adverse Effect, the Registrable Shares of the Requesting Holders to be included in such
Demand Registration shall equal the number of Registrable Shares which the Requesting Holders are so advised can be sold in such offering without an Adverse Effect and such Registrable Shares shall be allocated pro rata among the Requesting Holders
on the basis of the number of Registrable Shares requested to be included in such registration by each such Requesting Holder.
2.1.6 Deferral of Filing. BIPC may defer the filing (but not the preparation) of a Registration Statement or Prospectus,
as applicable, required by Section 2.1 until a date not later than ninety (90) days after the Required Filing Date if (a) at the time BIPC receives the Demand Request, BIPC is engaged in confidential negotiations or other confidential activities,
disclosure of which would be required in such Registration Statement or Prospectus, as applicable (but would not be required if such Registration Statement or Prospectus, as applicable, were not filed), and the Board of Directors of BIPC determines
in good faith that such disclosure would be materially detrimental to BIPC and its shareholders, (b) prior to receiving the Demand Request, BIPC had determined to effect a registered underwritten public offering of BIPC's securities for BIPC's
account and BIPC has taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering, or (c) at the time BIPC receives the Demand
Request, BIPC is currently engaged in a self-tender or exchange offer and the filing of a Registration Statement or Prospectus, as applicable, would cause a violation of applicable Securities Laws. A deferral of the filing of a Registration
Statement or Prospectus, as applicable, pursuant to this Section 2.1.6 shall be lifted, and the requested Registration Statement or Prospectus, as applicable, shall be filed forthwith, if, in the case of a deferral pursuant to clause (a) of the
preceding sentence, the negotiations or other activities are disclosed, otherwise become publicly known, or are terminated, or, in the case of a deferral pursuant to clause (b) of the preceding sentence, the proposed registration for BIPC's account
is abandoned. In order to defer the filing of a Registration Statement or Prospectus, as applicable, pursuant to this Section 2.1.6, BIPC shall promptly (but in any event within ten (10) days), upon determining to seek such deferral, deliver
to the Requesting Holders a certificate signed by an officer of BIPC or the Board of Directors of BIPC stating that BIPC is deferring such filing pursuant to this Section 2.1.6 and a general statement of the reason for such deferral and an
approximation of the anticipated delay. Within twenty (20) days after receiving such certificate, the Requesting Holder may withdraw such Demand Request by giving notice to BIPC; if withdrawn, the Demand Request shall be deemed not to have
been made for all purposes of this Agreement. BIPC may defer the filing of a particular Registration Statement or Prospectus, as applicable, pursuant to this Section 2.1.6 only once.
2.2 Piggyback Registrations
2.2.1 Right to
Piggyback. Each time BIPC proposes to (a) register any of its equity securities (other than pursuant to an Excluded Registration) under Canadian Securities Laws or U.S. Securities Laws for sale to the public (whether for the account of
BIPC or the account of any securityholder of BIPC) or (b) sell any of its equity securities (other than pursuant to an Excluded Registration) and with respect to which a Shelf Registration or Shelf Prospectus is expressly being utilized to effect
such sale, (clause (a) and (b) are each referred to as a "Piggyback Registration"), BIPC shall give prompt written notice to each Holder of Registrable Shares, which notice shall offer each such Holder the opportunity to include any or all of
its Registrable Shares in such Registration Statement, Shelf Registration or Prospectus, as applicable, subject to the limitations contained in Section 2.2.2 hereof. Each Holder who desires to have its Registrable Shares included in such
Registration Statement, Shelf Registration or Prospectus, as applicable, shall so advise BIPC in writing (stating the number of Registrable Shares desired to be registered) within three (3) days after the date of such notice from BIPC (or within one
(1) Business Day in the case of a "bought deal" financing). Any Holder shall have the right to withdraw such Holder's request for inclusion of such Holder's Registrable Shares in any Registration Statement, Shelf Registration or Prospectus, as
applicable, pursuant to this Section 2.2.1 by giving written notice to BIPC of such withdrawal provided, however, that such request is made prior to the execution of an underwriting agreement (or similar agreement) with respect to such
offering. Subject to Section 2.2.2 below, BIPC shall include in such Registration Statement, Shelf Registration or Prospectus, as applicable, all such Registrable Shares so requested to be included therein; provided, however, that BIPC may at
any time withdraw or cease proceeding with any such registration or sale if it shall at the same time withdraw or cease proceeding with the registration or sale of all other equity securities originally proposed to be registered or sold. Each Holder
shall protect and maintain the confidentiality of all information communicated to it by BIPC concerning a proposed Piggyback Registration pursuant to this Section 2.2.1 until such information becomes available in the public domain.
2.2.2 Priority on Piggyback Registrations
(a) If a Piggyback Registration is an underwritten offering, and if the managing underwriter advises BIPC that the inclusion of Registrable Shares requested to be included in a
Registration Statement, Shelf Registration or Prospectus, as applicable, would cause an Adverse Effect, BIPC shall only be required to include such number of Registrable Shares in such Registration Statement, Shelf Registration or Prospectus, as
applicable, as such underwriter advises in writing would not cause an Adverse Effect, with priority given as follows: (i) first, the securities BIPC proposes to sell, (ii) second, the Registrable Shares requested to be included in such Registration
Statement, Shelf Registration or Prospectus, pro rata among the Holders of such Registrable Shares on the basis of the number of Registrable Shares owned by each such Holder, and (iii) third, any other securities requested to be included in such
Registration Statement, Shelf Registration or Prospectus. If as a result of the provisions of this Section 2.2.2(a) any Holder shall not be entitled to include all Registrable Shares in a Registration Statement, Shelf Registration or
Prospectus that such Holder has requested to be so included, such Holder may withdraw such Holder's request to include Registrable Shares in such Registration Statement, Shelf Registration or Prospectus, as applicable.
(b) No Holder may participate in any Registration Statement, Shelf Registration or Prospectus,
as applicable, in respect of a Piggyback Registration hereunder unless such Holder (i) agrees to sell such Holder's Registrable Shares on the basis provided in any underwriting arrangements approved by BIPC and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents, each in customary form, reasonably required under the terms of such underwriting arrangements; provided, however, that no such Holder shall be required to
make any representations or warranties in connection with any such registration other than representations and warranties as to (A) such Holder's ownership of Registrable Shares to be sold or transferred free and clear of all liens, claims, and
encumbrances, (B) such Holder's power and authority to effect such transfer, and (C) such matters pertaining to compliance with applicable Securities Laws as may be reasonably requested; provided, further, however, that the obligation of such Holder
to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Holders selling Registrable Shares, and the liability of each such Holder will be in proportion thereto, and provided, further, that such
liability will be limited to the net amount received by such Holder from the sale of its Registrable Shares pursuant to such Registration Statement, Shelf Registration or Prospectus.
2.3 Short-Form Filings
(a) Shelf Registration Statement. BIPC shall use its reasonable best efforts to
cause Demand Registrations in the United States to be registered on a shelf registration statement on an appropriate form (including, but not limited to, Form F-10, Form F-3 or Form S-3, as may be applicable, or their successor forms, but excluding
Form S-8, Form S-4 or Form F-4, or their successor forms, or any other form for a similar purpose) once BIPC becomes eligible to use any such form, and BIPC shall use its reasonable best efforts to remain so eligible to use any such form.
(b) Short-Form Prospectus. BIPC shall use its reasonable best efforts to cause Demand
Registrations in Canada to be qualified by way of a short-form Prospectus prepared pursuant to the POP System if, at the time of such Demand Registration, BIPC is a POP Issuer and is able to do so in all of the provinces and territories in which the
Demand Registration is to be effected. For greater certainty, it is acknowledged that in the event that BIPC is not a POP Issuer or is unable to utilize the POP System in one or more Canadian provinces or territories in which the Demand
Registration is to be effected, BIPC shall proceed by way of long-form Prospectus.
2.4 Registration Procedures
Whenever any Holder has requested that any Registrable Shares be registered pursuant to this Agreement, BIPC will use its reasonable best efforts to effect the registration and the sale of such
Registrable Shares in accordance with the intended method of disposition thereof as promptly as is practicable, and pursuant thereto BIPC will as expeditiously as possible:
(a) prepare and file, pursuant to Section 2.1.1(b) with respect to any Demand Registration,
subject to Section 2.3, a Registration Statement or Prospectus, as applicable, with respect to such Registrable Shares and use its reasonable best efforts to cause such Registration Statement or Prospectus, as applicable, to become Effective;
provided that as far in advance as practicable before filing such Registration Statement or Prospectus, as applicable, or any amendment or supplement thereto, BIPC will furnish to the selling Holders copies of reasonably complete drafts of all such
documents prepared to be filed (including exhibits), and any such Holder shall have the opportunity to object to any information contained therein and BIPC will make corrections reasonably requested by such Holder with respect to such information
prior to filing any such Registration Statement or Prospectus, as applicable, or any amendment or supplement thereto;
(b) except in the case of a Shelf Registration or Shelf Prospectus, prepare and file with the SEC or the applicable Canadian Commissions, such amendments, post-effective
amendments and supplements to such Registration Statement or Prospectus, as applicable, as may be necessary to keep such Registration Statement or Prospectus, as applicable, effective for a period of not less than one hundred eighty (180) days (or
such lesser period as is necessary for the underwriters in an underwritten offering to sell unsold allotments) and comply with the provisions of the applicable Securities Laws with respect to the disposition of all securities covered by such
Registration Statement or Prospectus, as applicable, during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement or Prospectus, as applicable;
(c) in the case of a Shelf Registration or Shelf Prospectus, prepare and file with the SEC or
the applicable Canadian Commissions, as applicable, such amendments and supplements to such Shelf Registration or Shelf Prospectus, as applicable, as may be necessary to keep such Shelf Registration or Shelf Prospectus, as applicable, effective and
to comply with the provisions of the applicable Securities Laws with respect to the disposition of all Registrable Shares subject thereto for a period ending on the earlier of (i) twenty four (24) months after the Effective Date and (ii) the date on
which all the Registrable Shares subject thereto have been sold pursuant to such Shelf Registration or Shelf Prospectus, as applicable;
(d) furnish to each seller of Registrable Shares and the underwriters of the securities being registered such number of copies of such Registration Statement, Shelf Registration
or Prospectus, as applicable (in the English language and, if required, the French language), each amendment and supplement thereto, any documents incorporated by reference therein and such other documents as such seller or underwriters may
reasonably request in order to facilitate the disposition of the Registrable Shares owned by such seller or the sale of such securities by such underwriters (it being understood that, subject to Section 2.5 and the requirements of the applicable
Securities Laws, BIPC consents to the use of the Registration Statement, Shelf Registration and Prospectus, as applicable, and any amendment or supplement thereto by each seller and the underwriters in connection with the offering and sale of the
Registrable Shares covered by the Registration Statement, Shelf Registration or Prospectus, as applicable);
(e) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or "blue sky" laws of such jurisdictions as the managing
underwriter reasonably requests (or, in the event the Registration Statement, Shelf Registration or Prospectus, as applicable, does not relate to an underwritten offering, as the holders of a majority of such Registrable Shares may reasonably
request); use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement, Shelf Registration or Prospectus, as applicable, is required to be
kept effective; and do any and all other acts and things which may be reasonably necessary or advisable to enable each seller to consummate the disposition of the Registrable Shares owned by such seller in such jurisdictions (provided, however, that
BIPC will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to
general service of process in any such jurisdiction);
(f) notify each seller of Registrable Shares and each underwriter and (if requested by any such
Person) confirm such notice in writing (i) when any supplement or amendment to the Registration Statement, Shelf Registration or Prospectus, as applicable, has been filed following the Effective Date, and when the same has become effective, (ii) of
the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or "blue sky" laws or the initiation of any
proceedings for that purpose, and (iii) of the happening of any event which makes any statement made in the Registration Statement, Shelf Registration or Prospectus, as applicable, untrue or which requires the making of any changes in such
Registration Statement, Shelf Registration or Prospectus, as applicable, or documents so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and, as promptly as practicable thereafter, prepare and file with the SEC and the applicable Canadian Commissions (as applicable) and furnish a supplement or amendment to such Registration Statement, Shelf
Registration or Prospectus, as applicable, so that, as thereafter deliverable to the purchasers of such Registrable Shares, such Registration Statement, Shelf Registration or Prospectus, as applicable, will not contain any untrue statement of a
material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(g) permit any selling Holder, which in such Holder's sole and exclusive judgment, might reasonably be deemed to be an underwriter or a controlling person of BIPC, to participate
in the preparation of such Registration Statement, Shelf Registration or Prospectus, as applicable, and to require the insertion therein of material, furnished to BIPC in writing, which in the reasonable judgment of such Holder and its counsel
should be included;
(h) make reasonably available personnel, as selected by the Holders of a
majority of the Registrable Shares included in such registration, for assistance in the selling effort relating to the Registrable Shares covered by such registration, including, but not limited to, the participation of such members of BIPC's
management in road show presentations;
(i) otherwise use its reasonable best efforts to
comply with all applicable Securities Laws, and make generally available to BIPC's securityholders an earnings statement satisfying the provisions of Section 11(a) of the U.S. Securities Act no later than thirty (30) days after the end of the twelve
(12) month period beginning with the first day of BIPC's first fiscal quarter commencing after the Effective Date, which earnings statement shall cover said twelve (12) month period, and which requirement will be deemed to be satisfied if BIPC
timely files complete and accurate information on Forms 20-F and 6-K under the Exchange Act which otherwise complies with Rule 158 under the U.S. Securities Act;
(j) if requested by the managing underwriter or any seller of Registrable Shares, promptly incorporate in a prospectus supplement or post-effective amendment such information as
the managing underwriter or any seller reasonably requests to be included therein, including, without limitation, with respect to the Registrable Shares being sold by such seller, the purchase price being paid therefor by the underwriters and with
respect to any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(k) after filing of any document which is incorporated by reference into the Registration
Statement or Prospectus, as applicable (in the form in which it was incorporated), deliver a copy of each such document to each seller of Registrable Shares;
(l) cooperate with the sellers of Registrable Shares and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any
restrictive legends unless required under applicable law) representing securities sold under any Registration Statement or Prospectus, as applicable, and enable such securities to be in such denominations and registered in such names as the managing
underwriter or such sellers may request and keep available and make available to BIPC's transfer agent prior to the Effective Date a supply of such certificates;
(m) make available for inspection by any seller of Registrable Shares, any underwriter participating in any disposition pursuant to any Registration Statement or Prospectus, as
applicable, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of BIPC
(collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause BIPC's officers, directors and employees to supply all information requested by any such Inspector in
connection with such Registration Statement or Prospectus, as applicable; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Registration Statement or Prospectus, as
applicable, or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, BIPC shall not be required to provide any information under this subparagraph (m) if (i) BIPC believes, after
consultation with counsel for BIPC, that to do so would cause BIPC to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (x) BIPC has requested and been granted from the SEC or a Canadian Commission
confidential treatment of such information contained in any filing with the SEC or a Canadian Commission or documents provided supplementally or otherwise or (y) BIPC reasonably determines in good faith that such Records are confidential and so
notifies the Inspectors in writing, unless prior to furnishing any such information with respect to clause (ii) such Holder of Registrable Shares requesting such information agrees to enter into a confidentiality agreement in customary form and
subject to customary exceptions; and provided, further, that each Holder of Registrable Shares agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to BIPC and allow BIPC, at
its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(n) furnish to each seller of Registrable Shares and underwriter a signed counterpart of (i) an opinion or opinions of counsel to BIPC, (ii) a comfort letter or comfort letters
from BIPC's independent auditors, addressed to the underwriters, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the managing underwriter reasonably requests,
and (iii) if a Prospectus is filed in Quebec, opinions of Quebec counsel to BIPC and the auditors of BIPC addressed to the Holder and the underwriter or underwriters of such distribution relating to the translation of the Prospectus;
(o) cause the Registrable Shares included in any Prospectus or Registration Statement, as
applicable, to be listed on the Toronto Stock Exchange and on the New York Stock Exchange;
(p) provide and cause to be maintained a transfer agent and registrar for all Registrable Shares
registered hereunder;
(q) cooperate with each seller of Registrable Shares and each
underwriter participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(r) during the period when the Registration Statement or Prospectus, as applicable, is required to be delivered under the applicable Securities Laws, promptly file all documents
required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act or with the Canadian Commissions pursuant to Canadian Securities Laws;
(s) notify each seller of Registrable Shares promptly of any request by the SEC or a Canadian
Commission for the amending or supplementing of such Registration Statement or Prospectus, as applicable, or for additional information;
(t) enter into such agreements (including underwriting agreements in the managing underwriter's customary form) as are customary in connection with an underwritten registration;
and
(u) advise each seller of such Registrable Shares, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order or ruling by the SEC or a Canadian Commission suspending the effectiveness of such Registration Statement or Prospectus, as applicable, or the initiation or threatening of any
proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
2.5 Suspension of Dispositions
Each Holder agrees by acquisition of any Registrable Shares that, upon receipt of any notice (a "Suspension Notice") from BIPC of the happening of any event of the kind described in Section
2.4(f)(iii) such Holder will forthwith discontinue disposition of Registrable Shares until such Holder's receipt of the copies of the supplemented or amended Registration Statement or Prospectus, as applicable, or until it is advised in writing (the
"Advice") by BIPC that the use of the Registration Statement or Prospectus, as applicable, may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Registration Statement or
Prospectus, as applicable, and, if so directed by BIPC, such Holder will deliver to BIPC all copies, other than permanent file copies then in such Holder's possession, of the Registration Statement or Prospectus, as applicable, covering such
Registrable Shares current at the time of receipt of such notice. In the event BIPC shall give any such notice, the time period regarding the effectiveness of Registration Statements or Prospectuses, as applicable, set forth in Sections 2.4(b)
and 2.4(c) hereof shall be extended by the number of days during the period from and including the date of the giving of the Suspension Notice to and including the date when each seller of Registrable Shares covered by such Registration Statement or
Prospectus, as applicable, shall have received the copies of the supplemented or amended Registration Statement or Prospectus, as applicable, or the Advice. BIPC shall use its reasonable best efforts and take such actions as are reasonably
necessary to render the Advice as promptly as practicable.
2.6 Registration
Expenses
All fees and expenses incident to any registration including, without limitation, BIPC's performance of or compliance with this Article 2, all registration and filing fees, all fees
and expenses associated with filings required to be made with FINRA (including, if applicable, the reasonable fees and expenses of any "qualified independent underwriter" and of its counsel), as may be required by the rules and regulations of FINRA,
fees and expenses of compliance with securities or "blue sky" laws (including reasonable fees and disbursements of counsel in connection with "blue sky" qualifications of the Registrable Shares), rating agency fees, printing expenses (including
expenses of printing certificates for the Registrable Shares and of printing prospectuses), messenger and delivery expenses, the fees and expenses incurred in connection with any listing or quotation of the Registrable Shares, fees and expenses of
counsel for BIPC and its independent auditors (including the expenses of any special audit or "cold comfort" letters required by or incident to such performance), the fees and expenses of any special experts retained by BIPC in connection with such
registration, and the fees and expenses of other persons retained by BIPC, will be borne by BIPC (unless paid by a security holder that is not a Holder for whose account the registration is being effected) whether or not any Registration Statement
or Prospectus becomes Effective; provided, however, that any underwriting discounts, commissions, or fees attributable to the sale of the Registrable Shares will be borne by the Holders pro rata on the basis of the number of Shares so registered and
the fees and expenses of any counsel, accountants, or other persons retained or employed by any Holder will be borne by such Holder.
2.7 Indemnification
2.7.1 BIPC agrees to indemnify
and reimburse, to the fullest extent permitted by law, each seller of Registrable Shares, and each of its employees, advisors, agents, representatives, partners, officers, and directors and each Person who Controls such seller and any agent or
investment advisor thereof (collectively, the "Seller Affiliates") (a) against any and all losses, claims, damages, liabilities, and expenses, joint or several (including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 2.7.3) based upon, arising out of, related to or resulting from any untrue or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus or any amendment thereof or supplement
thereto, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, (b) against any and all loss, liability, claim, damage, and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement of any litigation or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon, arising out of, related to or resulting from
any such untrue statement or omission or alleged untrue statement or omission, and (c) against any and all costs and expenses (including reasonable fees and disbursements of counsel) as may be reasonably incurred in investigating, preparing, or
defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon, arising out of, related to or resulting from any such untrue statement or omission or
alleged untrue statement or omission, or violation of the Securities Laws, to the extent that any such expense or cost is not paid under subparagraph (a) or (b) above; except insofar as any such statements are made in reliance upon and in strict
conformity with information furnished in writing to BIPC by such seller or any Seller Affiliate for use therein or arise from such seller's or any Seller Affiliate's failure to deliver a copy of the Registration Statement or Prospectus or any
amendments or supplements thereto after BIPC has furnished such seller or Seller Affiliate with a sufficient number of copies of the same. The reimbursements required by this Section 2.7.1 will be made by periodic payments during the course of
the investigation or defense, as and when bills are received or expenses incurred.
2.7.2 In
connection with any Registration Statement or Prospectus in which a seller of Registrable Shares is participating, each such seller will furnish to BIPC and/or BIP in writing such information and affidavits as BIPC and/or BIP reasonably requests for
use in connection with any such Registration Statement or Prospectus, as applicable, and, to the fullest extent permitted by law, each such seller will indemnify BIPC, BIP and each of their respective employees, advisors, agents,
representatives, partners, officers and directors and each Person who Controls BIPC or BIP, as applicable (excluding such seller or any Seller Affiliate) and any agent or investment advisor thereof against any and all losses, claims, damages,
liabilities, and expenses (including, without limitation, reasonable attorneys' fees and disbursements except as limited by Section 2.7.3) resulting from any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus, as applicable, or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission is contained in any information or affidavit so furnished in writing by such seller or any of its Seller Affiliates specifically for inclusion
in the Registration Statement or Prospectus, as applicable; provided that the obligation to indemnify will be several, not joint and several, among such sellers of Registrable Shares, and the liability of each such seller of Registrable Shares will
be in proportion to, and will be limited to, the net amount received by such seller from the sale of Registrable Shares pursuant to such Registration Statement or Prospectus, as applicable; provided, however, that such seller of Registrable Shares
shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement or Prospectus, as applicable, or amendment thereof or supplement thereto, such seller has furnished in writing to BIPC and/or BIP
information expressly for use in such Registration Statement or Prospectus, as applicable, or any amendment thereof or supplement thereto which corrected or made not misleading information previously furnished to BIPC and/or BIP.
2.7.3 Any Person entitled to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give such notice shall not limit the rights of such Person) and (b) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any person entitled to
indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (i) the indemnifying party has agreed
to pay such fees or expenses, (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person, or (iii) such counsel has been retained due to a conflict as described
below. If such defense is not assumed by the indemnifying party as permitted hereunder, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not
be unreasonably withheld or delayed). If such defense is assumed by the indemnifying party pursuant to the provisions hereof, such indemnifying party shall not settle or otherwise compromise the applicable claim unless (A) such settlement or
compromise contains a full and unconditional release of the indemnified party without any admission of liability on the part of such indemnified party or (B) the indemnified party otherwise consents in writing. An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim (together with appropriate
local counsel), unless in the reasonable judgment of any indemnified party, a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party
shall be obligated to pay the reasonable fees and disbursements of such additional counsel or counsels.
2.7.4 Each
party hereto agrees that, if for any reason the indemnification provisions contemplated by Section 2.7.1 or Section 2.7.2 are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities, or expenses (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, liabilities, or expenses (or
actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the actions which resulted in the losses, claims, damages, liabilities or expenses
as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7.4 were determined by pro rata allocation (even if the Holders or any underwriters or all of them were
treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 2.7.4. The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, or expenses (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or, except as
provided in Section 2.7.3, defending any such action or claim. Notwithstanding the provisions of this Section 2.7.4, no Holder shall be required to contribute an amount greater than the dollar amount by which the net proceeds received by such
Holder with respect to the sale of any Registrable Shares exceeds the amount of damages which such Holder has otherwise been required to pay by reason of any and all untrue or alleged untrue statements of material fact or omissions or alleged
omissions of material fact made in any Registration Statement or Prospectus, as applicable, or any amendment thereof or supplement thereto related to such sale of Registrable Shares. No person guilty of fraudulent misrepresentation shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders' obligations in this Section 2.7.4 to contribute shall be several in proportion to the amount of Registrable Shares registered by
them and not joint.
2.7.5 If indemnification is available under this Section 2.7, the indemnifying parties shall indemnify each indemnified party to the
full extent provided in Section 2.7.1 and Section 2.7.2 without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in Section 2.7.4 subject, in the case of the Holders, to
the limited dollar amounts set forth in Section 2.7.2.
2.7.6 The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, or controlling Person of such indemnified party and will survive the transfer of securities.
2.8 Transfer of Registration Rights
The rights of each Holder under this Agreement may, in the Holder's discretion, be assigned, in whole or in part, to any direct or indirect transferee of all or any portion of such Holder's
Registrable Shares who agrees in writing to be subject to and bound by all the terms and conditions of this Agreement. For greater certainty, in the case of a transfer of less than all of such Holder's Registrable Shares, no such assignment
will limit or otherwise impair the transferor's rights under this Agreement.
2.9 Current Public Information
BIPC will file the reports required to be filed by it under applicable Securities Laws (or, if BIPC is not required to file such reports, will, upon the request of the Holders, make publicly
available other information) and will take such further action as any of the Holders may reasonably request, all to the extent required from time to time to enable the Holders to sell Registrable Securities without registration under, and subject to
the limitations of, applicable Securities Laws. Upon the reasonable request of any Holder, BIPC will deliver to such parties a written statement as to whether it has complied with such requirements and will, at its expense, forthwith upon the
request of any such Holder, deliver to such Holder a certificate, signed by an officer, stating (a) BIPC's name, address and telephone number (including area code), (b) BIPC's Internal Revenue Service identification number and Business Number issued
by the Canada Revenue Agency, (c) BIPC's SEC and SEDAR file numbers, (d) the number of Shares outstanding as shown by the most recent report or statement published by BIPC, and (e) whether BIPC has filed the reports required to be filed under the
applicable Securities Laws for a period or at least ninety (90) days prior to the date of such certificate and in addition has filed the most recent annual report required to be filed thereunder.
2.10 Preservation of Rights
BIPC will not directly or indirectly (a) grant any registration rights to third parties
which are more favorable than or inconsistent with the rights granted hereunder or (b) enter into any agreement, take any action, or permit any change to occur, with respect to its securities that violates or subordinates the rights expressly
granted to the Holders in this Agreement.
2.11 Obligations of BIP
Whenever any Holder has requested that any Registrable Shares be registered in accordance with the terms of this Agreement, BIP shall (i) cooperate with BIPC to satisfy BIPC's obligations pursuant
to this Agreement and participate in the preparation, as necessary, of a Registration Statement and/or Prospectus by BIPC and (ii) take any and all such actions as may be required under this Agreement and/or applicable Securities Laws to register
the underlying limited partnership units of BIP that may be issued upon an exchange, redemption or purchase of Shares, or as a result of the liquidation, dissolution or winding up of BIPC or BIP. The provisions of the registration rights agreement
between BIP and Brookfield dated December 4, 2007 (as amended, the "BIP-Brookfield Registration Rights Agreement"), other than sections 2.1.1(b)(i) and 2.1.1(b)(ii) thereof, shall apply to the registration of any underlying limited
partnership units of BIP that may be delivered by Brookfield to a holder of Shares upon an exchange of Shares, mutatis mutandis, and the preparation of a Registration Statement and/or Prospectus by BIP in connection therewith shall be deemed
to be a "Demand Registration" under the BIP-Brookfield Registration Rights Agreement without the need for Brookfield to take any further action thereunder.
ARTICLE 3
TERMINATION
3.1 Termination
The Holders
may exercise the registration rights granted hereunder in such manner and proportions as they shall agree among themselves. The registration rights hereunder shall cease to apply to any particular Registrable Shares when: (a) a Registration
Statement or Prospectus, as applicable, with respect to the sale of such Shares (or other securities) shall have become Effective and such Shares shall have been disposed of in accordance with such Registration Statement or Prospectus, as
applicable; (b) such Shares (or other securities) shall have been sold to the public pursuant to an exemption under applicable Securities Laws; (c) such Shares (or other securities) shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by BIPC and subsequent public distribution of them shall not require registration under applicable Securities Laws; (d) such Shares (or other securities) shall have ceased
to be outstanding; or (e) such Registrable Shares are eligible for sale pursuant to Rule 144(b)(1) (without the requirement for BIPC to be in compliance with the current public information required under Rule 144) under the U.S. Securities
Act. BIPC shall promptly upon the request of any Holder furnish to such Holder evidence of the number of Registrable Shares then outstanding.
ARTICLE 4
MISCELLANEOUS
4.1 Enurement
This Agreement
will enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
4.2 Notices
Any notice or other communication required or permitted to be given hereunder will be in writing and
will be given by prepaid first-class mail, by facsimile or other means of electronic communication, including e-mail, or by hand-delivery as hereinafter provided. Any such notice or other communication, if mailed by prepaid first-class mail at
any time other than during a general discontinuance of postal service due to strike, lockout or otherwise, will be deemed to have been received on the fourth Business Day after the post-marked date thereof, or if sent by facsimile or other means of
electronic communication, will be deemed to have been received on the Business Day following the sending, or if delivered by hand will be deemed to have been received at the time it is delivered to the applicable address noted below either to the
individual designated below or to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of change of address will also be governed by this section. In the event of a general
discontinuance of postal service due to strike, lock-out or otherwise, notices or other communications will be delivered by hand or sent by facsimile or other means of electronic communication and will be deemed to have been received in accordance
with this section. Notices and other communications will be addressed as follows:
4.2.1 if to Brookfield:
Brookfield Asset Management Inc.
Brookfield Place, 181 Bay Street
Suite 300, P.O. Box 762
Toronto, Ontario
M5J 2T3
Attention: Chief Legal Officer
4.2.2 if to BIPC:
Brookfield Infrastructure Corporation
250 Vesey Street, 15th Floor
New York, NY 10281-1023
Attention: Chief Financial Officer
4.2.3 if to BIP:
Brookfield Infrastructure Partners L.P.
73 Front Street, 5th Floor
Hamilton
HM12, Bermuda
Attention: Chief Financial Officer
or
to such other addresses as a party may from time to time notify the other in accordance with this Section 4.2.
If to any other Holder, the address indicated for such Holder in BIPC's stock
transfer records with copies, so long as Brookfield owns any Registrable Shares, to Brookfield as provided above.
4.3 Authority
Each of the parties hereto represents to the other that (a) it has the corporate power and authority
to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement by it has been duly authorized by all necessary corporate action and no such further action is required, (c) it has duly and validly
executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and general equity principles.
4.4 Further Assurances
Each
of the parties hereto will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time for the purpose of
giving effect to this Agreement and will use commercially reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.
4.5 Counterparts
This
Agreement may be signed in counterparts and each of such counterparts will constitute an original document and such counterparts, taken together, will constitute one and the same instrument.
IN WITNESS WHEREOF the parties have executed
this Agreement as of the day and year first above written.
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BROOKFIELD ASSET MANAGEMENT INC.
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By:
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/s/ Aaron Kline
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Name: Aaron
Kline
Title: Managing Director
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BROOKFIELD INFRASTRUCTURE CORPORATION
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By:
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/s/ Aaron Kline
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Name: Aaron
Kline
Title: Vice President
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BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner, BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED
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By:
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/s/ James Bodi
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Name: James
Bodi
Title: Vice President
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[Signature page to Registration Rights Agreement]
GUARANTEE
THIS GUARANTEE is made as of the 30th day of March, 2020,
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BY:
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BIPC HOLDINGS INC., a corporation incorporated under the laws of the Province of Ontario
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(the "Guarantor")
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IN FAVOUR OF:
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COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company existing under the laws of Canada
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(the "Trustee")
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RECITALS:
A. The Issuers (as defined below) and the Trustee have entered into an indenture dated as of October 10, 2012 (as the same has been or may in the future be supplemented,
amended, extended, restated or otherwise modified from time to time, the "Indenture") providing for the issuance of the Notes (as defined below).
B. Each Issuer is an Affiliate of the Guarantor.
C. The Guarantor will, directly or indirectly, benefit from the issuance of the Notes under the Indenture and, accordingly, desires to execute this Guarantee.
NOW THEREFORE in consideration of the foregoing and other benefits accruing to the Guarantor, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby covenants and
agrees with the Trustee as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement, all capitalized terms used and not defined in this Agreement will have the
meanings given to such terms in the Indenture. In addition, the following terms will have the following meanings:
1.1.1 "Additional Guarantor" means a "Guarantor" as that term is defined in the Indenture, other than the Guarantor under
this Agreement;
1.1.2 "this Agreement", "this Guarantee", "herein", "hereof", "hereby",
"hereunder" and any similar expressions refer to this Guarantee as it may be supplemented, amended or restated from time to time, and not to any particular Article, section or other portion hereof;
1.1.3 "Event of Default" means the occurrence of any of the following:
(a) any Event of Default under the Indenture;
(b) failure on the part of the Guarantor to perform or comply with Section 5.2 of this Agreement;
(c) failure on the part of the Guarantor to perform any other covenant or agreement of the
Guarantor under this Agreement, which failure continues for a period of 60 consecutive days after a written notice specifying such failure to perform has been given, by registered or certified mail, to the Guarantor by the Trustee or Trustees or to
the Guarantor and the Trustee or Trustees by the Holders of at least 25% in principal amount of any one or more Series of Outstanding Notes; or
(d) failure on the part of the Guarantor to make payment of any amounts payable by it under this Agreement;
1.1.4 "Guaranteed Obligations" means the principal of, premium, if any, Additional Amounts, if any, and interest on all Notes of all Series issued by the Issuers under the Indenture from
time to time when and as the same shall become due and payable, whether at maturity, upon redemption, acceleration or otherwise, and all other amounts and liabilities owing by the Issuers to the Trustee or Trustees under the Indenture, whether
present or future, absolute or contingent, liquidated or unliquidated, as principal or as surety, alone or with others, of whatsoever nature or kind, in any currency, under or in respect of the Indenture;
1.1.5 "Guarantor" means BIPC Holdings Inc.;
1.1.6 "Guarantor's Counsel" means legal counsel retained by the Guarantor;
1.1.7 "Holder" means the Person in whose name a Note is registered in the Note Register;
1.1.8 "Issuers" means Brookfield Infrastructure Finance ULC, a corporation incorporated under the laws of Alberta, Brookfield
Infrastructure Finance LLC, a company formed under the laws of Delaware, Brookfield Infrastructure Finance Limited, a company incorporated under the laws of Bermuda and Brookfield Infrastructure Finance Pty Ltd, a company incorporated under
the laws of Australia, and each of their respective successors; "Issuer" means any one of them;
1.1.9 "Notes"
means the unsecured debentures, notes or other evidences of indebtedness, which may be convertible into or exchangeable for any securities of any Person (including the Issuers), issued or to be issued in one or more Series pursuant to the Indenture
and authenticated and delivered thereunder;
1.1.10 "Officer's Certificate" means a certificate of the Guarantor signed by
any one Board member or officer of the Guarantor in their capacity as an officer and not in their personal capacity;
1.1.11 "Proceedings" means any receivership, insolvency,
proposal, bankruptcy, compromise, arrangement, winding-up, dissolution or other similar judicial proceedings; and
1.1.12 "wholly-owned subsidiary entity" shall have the meaning set out in MI 61-101 Multilateral Instrument 61-101 -
Protection of Minority Security Holders in Special Transactions.
1.2 Headings
The inclusion of
headings in this Agreement is for convenience of reference only and shall not affect the construction or interpretation hereof.
1.3 References to Articles and Sections
Whenever in this Agreement a particular Article, section or other portion
thereof is referred to, such reference pertains to the Article, section or portion thereof contained herein unless otherwise indicated.
1.4 Currency
All amounts in this Agreement are stated and shall be paid in Canadian Currency, provided that if
Guaranteed Obligations are outstanding in a Currency other than Canadian Currency, the Guarantor, at its option, may pay such amounts in such other Currency, to the extent that the Guaranteed Obligations are outstanding in such other Currency.
1.5 Gender and Number
In this
Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing gender include all genders or the neuter, and words importing the neuter include all genders.
1.6 Invalidity of Provisions
Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other provision hereof. To the extent permitted by applicable law, the parties waive any provision of law which renders any provision of this Agreement invalid or unenforceable in
any respect.
1.7 Entire Agreement
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement.
1.8 Governing Law, Attornment
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and the Guarantor hereby irrevocably attorns to the
jurisdiction of the courts of Ontario.
1.9 Counterparts
This Agreement may be executed in several counterparts, each of which once executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument.
This Agreement may be executed and delivered by facsimile or other electronic transmission of a counterpart hereof bearing a manual, facsimile or other electronic signature.
ARTICLE 2
GUARANTEE
2.1 Guarantee
The Guarantor
unconditionally, jointly and severally with any Additional Guarantors, guarantees the due payment of all Guaranteed Obligations.
2.2 Continuing Guarantee
The guarantee herein shall be a continuing guarantee of the payment of all the Guaranteed
Obligations and shall apply to and secure any ultimate balance thereof due or remaining unpaid. The guarantee herein shall not be considered as wholly or partially satisfied by the intermediate payment or satisfaction at any time of all or any part
of the Guaranteed Obligations.
ARTICLE 3
ENFORCEMENT OF GUARANTEE
3.1 Demand
Upon the occurrence of an Event of Default, the Guarantor shall, on demand by the Trustee or Trustees,
forthwith pay to the Trustee or Trustees all Guaranteed Obligations for which such demand was made. The Guarantor shall be jointly and severally liable with any Additional Guarantors for all obligations of the Guarantor hereunder.
3.2 Right to Immediate Payment or Performance
The Trustee or Trustees shall not be bound to make any demand on or to seek or exhaust their recourse against the Issuers or any other Person before being entitled to demand payment from the
Guarantor and enforce their rights under this Agreement, and the Guarantor hereby renounces all benefits of discussion and division.
3.3 Trustee's
Statement
The statement in writing of the Trustee or Trustees as to the amount payable hereunder shall be binding upon the Guarantor and conclusive against it in the absence of manifest
error.
ARTICLE 4
PROTECTION OF TRUSTEE
4.1 Liability Absolute
The
liability of the Guarantor hereunder shall be absolute and unconditional and shall not be discharged, diminished or in any way affected by:
4.1.1 any amalgamation, merger, consolidation or reorganization of an Issuer, the Guarantor or a Trustee, or any continuation of an Issuer, the Guarantor or a Trustee from the statute under which
it now or hereafter exists to another statute, whether under the laws of the same jurisdiction or another jurisdiction;
4.1.2 any change in the name, business, objects, capital structure, ownership, constating documents, by-laws or resolutions of an
Issuer, the Guarantor or a Trustee, including without limitation any transaction (whether by way of transfer, sale or otherwise) whereby all or any part of the undertaking, property and assets of an Issuer, the Guarantor or a Trustee becomes the
property of any other Person;
4.1.3 any Proceedings of or affecting an Issuer, the Guarantor, a Trustee or any other Person, and
any court orders made or action taken by an Issuer, the Guarantor, a Trustee or any other Person under or in connection with those Proceedings, whether or not those Proceedings or orders or that action results in any of the matters described in
Section 4.2 occurring with or without the consent of the Trustee or Trustees;
4.1.4 any defence, counterclaim or right of
set-off available to an Issuer; and
4.1.5 any other circumstance which might otherwise constitute in whole or in part a defence
available to, or a discharge of, the Guarantor, an Issuer or any other Person in respect of the Guaranteed Obligations or the liability of the Guarantor.
4.2 Dealings by Trustee
The Trustee or Trustees may from time to time in their absolute discretion, without
discharging, diminishing or in any way affecting the liability of the Guarantor hereunder:
4.2.1 enforce or take action under or
abstain from enforcing or taking action under the Indenture, any other guarantee or any other agreement;
4.2.2 renew all or any part of the Guaranteed Obligations or grant extensions of time or
any other indulgences to an Issuer or to any other guarantor or other Person liable directly or as surety for all or any part of the Guaranteed Obligations;
4.2.3 accept or make any compositions or arrangements with or release, discharge or otherwise deal with or abstain from dealing with an Issuer or any other guarantor or other Person liable
directly or as surety for all or any part of the Guaranteed Obligations;
4.2.4 apply all money at any time received from any
Issuer in respect of the Guaranteed Obligations upon such part of the Guaranteed Obligations as the Trustee or Trustees may see fit or change any such application in whole or in part from time to time as each of them may see fit;
4.2.5 in whole or in part prove or abstain from proving a claim of the Trustee or Trustees in any Proceedings of or affecting an
Issuer or any other Person; and
4.2.6 agree with an Issuer, any other guarantor or any other Person to do anything described in
Sections 4.2.1 to 4.2.5,
whether or not any of the matters described above occur alone or in connection with one or more other such matters.
ARTICLE 5
COVENANTS OF
THE GUARANTOR
5.1 Covenants Contained in other Guarantees and Supplemental
Indentures
In respect of each Series, the Guarantor agrees that it will comply with each limitation on indebtedness and limitation on liens that is set out in: (i) a guarantee delivered by
any Additional Guarantor and (ii) a Supplemental Indenture and that is applicable to the Guarantor.
5.2 Limitations Concerning Merger, Consolidations and Certain Asset Sales
The Guarantor shall not enter into any
transaction or series of transactions whereby all or substantially all of its undertaking, property and assets would become the property of any other Person (herein called a "Successor"), whether by way of conveyance, transfer, lease,
reorganization, consolidation, amalgamation, arrangement, merger, transfer, sale or otherwise (herein a "Successor Transaction"), unless:
(a) the Successor shall have executed, prior to or contemporaneously with the consummation of any such transaction, an assumption of the obligations of the Guarantor under
this Agreement, including the due and punctual payment of all amounts payable hereunder, and such other instruments as in the opinion of the Guarantor's Counsel are necessary or advisable to evidence the agreement of the Successor to observe and
perform all the covenants and obligations of the Guarantor under this Agreement;
(b) immediately after giving effect to such
transaction, no Event of Default, and event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and
(c) the Guarantor or such Successor shall have delivered to the Trustee or Trustees an opinion of Guarantor's Counsel (for which the provider of such opinion may rely on an
Officer's Certificate for factual matters), to the effect that such Successor Transaction complies with this Section 5.2 and that all conditions precedent herein provided for relating to such Successor Transaction have been complied with.
provided, however, the provisions of this Section 5.2 shall not be applicable to any transaction between or among any one or more of any Issuer, the Guarantor, an Additional Guarantor and/or any Subsidiary of any of
them.
Upon any Successor Transaction in accordance with this Section 5.2, the Successor shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under
this Guarantee with the same effect as if such Successor had been named as the Guarantor herein, and in the event of any such conveyance or transfer, the Guarantor (which term shall for this purpose mean the Person named as "Guarantor" in the first
paragraph of this Guarantee or any successor Person which shall theretofore become such in the manner described in this Section 5.2), shall be discharged of all obligations and covenants under this Guarantee and may be dissolved and liquidated.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties
The Guarantor represents and warrants to the Trustee or Trustees as follows:
6.1.1 it is duly created and existing under the laws of its jurisdiction of formation or incorporation, as applicable, and has the
power and capacity to own its properties and assets and to carry on its business as presently carried on by it;
6.1.2 it has the
power and capacity to enter into this Agreement and to do all acts and things as are required or contemplated hereunder to be done, observed and performed by it;
6.1.3 it has taken all necessary corporate and, if applicable, partnership action to authorize the execution, delivery and performance of this Agreement;
6.1.4 if applicable, there is no unanimous shareholder agreement which restricts, in whole or in part, the powers of the directors
of the Guarantor to manage or supervise the business and affairs of the Guarantor;
6.1.5 the entering into of this Agreement and
the performance by the Guarantor of its obligations hereunder does not and will not contravene, breach or result in any default under the constating documents of the Guarantor or under any material mortgage, lease, agreement or other legally binding
instrument, license, permit or law to which the Guarantor is a party or by which the Guarantor or any of its properties or assets may be bound and will not result in or permit the acceleration of the maturity of any indebtedness, liability or
obligation of the Guarantor under any material mortgage, lease, agreement or other legally binding instrument of or affecting the Guarantor; and
6.1.6 no authorization, consent or approval of, of filing
with or notice to, any Person or governmental body is required in connection with the execution, delivery or performance of this Agreement by the Guarantor.
ARTICLE 7
DEFAULT
7.1 Judgment Against the Guarantor
In case of any judicial or other proceedings to enforce the rights of the Holders, judgment may be rendered against the Guarantor in favour of the Holders or in favour of the Trustee or Trustees, as
trustee(s) for the Holders, for any amount which may remain due in respect of the Notes and the interest thereon.
7.2 Immunity of Shareholders, Directors and Officers
The Trustee or Trustees and the Holders by their acceptance of
the Notes hereby waive and release any right, cause of action or remedy now or hereafter existing in any jurisdiction against any past, present or future incorporator, shareholder, director, officer or partner of the Guarantor or of any successor
thereof for the payment of the principal of or premium or interest on any of the Notes or on any covenant, agreement, representation or warranty by the Guarantor herein or in the Notes contained.
ARTICLE
8
MISCELLANEOUS
8.1 Incorporation by Reference
The provisions of Sections 1.5 (Notices, etc. to Trustee and Issuers) and 1.6 (Notice to Holders; Waiver), and Articles 6 (The Trustees), 9 (Supplemental Indentures) and 15 (Meetings of Holders of
Notes) of the Indenture shall apply mutatis mutandis to this Guarantee.
8.2 Payment of Costs and Expenses
The Guarantor shall pay to the Trustee or Trustees on demand all reasonable costs and expenses of the Trustee or Trustees, their officers, employees and agents and any receiver or receiver-manager
appointed by them or by a court in connection with this Agreement, including, without limitation, in connection with:
8.2.1 any actual or proposed amendment or modification hereof
or any waiver hereunder and all instruments supplemental or ancillary thereto;
8.2.2 obtaining advice as to the Trustee's or
Trustees' rights and responsibilities under this Agreement; and
8.2.3 the defence, establishment, protection or enforcement of
any of the rights or remedies of the Trustee or Trustees under this Agreement including, without limitation, all costs and expenses of establishing the validity and enforceability of, or of collection of amounts owing under, this Agreement;
and further including, without limitation, all of the reasonable fees, expenses and disbursements of the Trustee's or Trustees' lawyers, on a substantial indemnity basis, incurred in connection therewith and all sales
or value-added taxes payable by the Trustee or Trustees (whether refundable or not) on all such costs and expenses.
8.3 No Waiver
No delay on the part of the Trustee or Trustees in the exercise of any right, power or remedy
hereunder or otherwise shall operate as a waiver thereof, and no single or partial exercise by the Trustee or Trustees of any right, power or remedy shall preclude other or further exercise thereof or the exercise of any other right, power or
remedy. No action of the Trustee or Trustees permitted hereunder shall in any way impair or affect their rights, powers or remedies under this Agreement.
8.4 Termination
8.4.1 For greater certainty, this
Guarantee shall terminate and be of no further force and effect at the earlier of the date that: (i) the Guaranteed Obligations have been indefeasibly paid or performed in full; and (ii) all of the Notes have been purchased by an Affiliate of any
Issuer in accordance with the Indenture.
8.4.2 This Guarantee shall terminate automatically upon the occurrence of any of the
following events:
8.4.2.1 the Guarantor becomes a wholly-owned subsidiary entity of an Additional Guarantor; or
8.4.2.2 the Guarantor becomes a wholly-owned subsidiary entity of Brookfield Infrastructure Partners L.P. or Brookfield Infrastructure
L.P.
The Guarantor shall notify the Security Trustee in writing of the occurrence of either of the events under this Section 8.4.2.
8.4.3 Notwithstanding the definition of Guaranteed Obligations in Section 1.1.4, upon five days' notice in writing to the Security Trustee, the Guarantor may terminate this Guarantee in respect of
Guaranteed Obligations relating to any Series issued after the expiry of that five-day period, but not in respect of any Guaranteed Obligations incurred or arising before the expiry of that five-day period.
8.5 Successors and Assigns
This Agreement shall be binding upon the Guarantor and its successors and enure to the benefit of the Trustee or Trustees and their successors and assigns.
8.6 Copy Received
The
Guarantor acknowledges receipt of a copy of this Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF the Guarantor has executed this Agreement as of the date first above written.
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BIPC HOLDINGS INC.
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by:
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/s/ Aaron Kline
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Name: Aaron Kline
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Title: Director
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THIS GUARANTEE INDENTURE dated as of March 30, 2020;
AMONG:
BIPC HOLDINGS INC., a corporation
incorporated under the laws of the Province of Ontario,
(hereinafter referred to as the "Guarantor"),
- and -
BIP INVESTMENT CORPORATION, a corporation formed under the laws of British Columbia,
(hereinafter referred to as the
"Corporation"),
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company organized and existing under the laws of Canada,
(hereinafter referred to as the "Security Trustee").
WHEREAS pursuant to the terms of this guarantee indenture (the
"Guarantee") the Guarantor has agreed to guarantee in favour of the Holders (as defined below) the payment of the Senior Preferred Share Obligations (as defined below), pursuant to the terms of the Senior Preferred Shares (as defined
below);
AND WHEREAS all necessary acts and proceedings have been done and taken and all necessary resolutions have been passed to authorize the execution and delivery of this Guarantee
and to make the same legal, valid and binding upon the Guarantor;
AND WHEREAS the foregoing recitals are made as representations and statements of fact by the Guarantor and not by the
Security Trustee;
NOW THEREFORE THIS GUARANTEE WITNESSES that for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties),
the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 Definitions
For all purposes of this Guarantee, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Guarantee as a whole and not to any particular Article, Section or other subdivision;
(c) all references to "the Guarantee" or "this Guarantee" are to this Guarantee as modified, supplemented or amended from time to time;
(d) references to any statute, law, regulation, ordinance, order, rule, manual, policy or
directive will be deemed to include references to the same as amended, revised, re-enacted or consolidated from time to time and any successor thereto;
(e) references to any contract, agreement or other instrument, or any section of any contract, agreement or other instrument will, unless specifically referred to, be deemed to
include references to the same as varied, amended, supplemented, replaced or restated from time to time; and
(f) references to any Person will include references to any successors or assigns of such Person or any Person that acquires all or substantially all of the assets of such
Person.
In addition, the following terms shall have the following meanings:
"Act" has the meaning given to such term in Section 1.4(a);
"Additional Guarantor" means any guarantor in any guarantee indenture with respect to the Senior Preferred Shares among the Corporation, the Security Trustee, and any guarantor party thereto pursuant to which
such guarantor has guaranteed certain obligations with respect to such Senior Preferred Shares, other than the Guarantor under this Agreement;
"Affiliate" means, with respect to a Person, any other Person
that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person;
"Authorized Investments" has the meaning given to
such term in Section 5.7;
"BCBCA" means the Business Corporations Act (British Columbia);
"BIP" means Brookfield Infrastructure Partners L.P.;
"BIP Preferred Unit Guarantee Indenture" means any present or future guarantee or guarantee indenture entered into by the Guarantor with respect to any outstanding class A preferred limited partnership units
issued by BIP from time to time, pursuant to which the Guarantor guarantees any obligations with respect to such class A preferred limited partnership units of BIP;
"BIP Preferred Unit Guarantee
Obligations" means, with respect to the Guarantor, all indebtedness, liabilities and obligations of the Guarantor under or pursuant to all BIP Preferred Unit Guarantee Indentures to which the Guarantor is a party;
"Board Resolution" means,
with respect to the Guarantor, a copy of a resolution duly passed by the board of directors (or the equivalent) of the Governing Body of the Guarantor, to be in full force and effect on the applicable date, and delivered to the Security Trustee;
"Business Day" means a day other than a Saturday, a Sunday or any other day that is a statutory or civic holiday in Toronto, Canada;
"Control" means the control by one
Person of another Person in accordance with the following: a Person ("A") controls another Person ("B") where A has the power to determine the management and policies of B by contract or status (for example the status of A being the
general partner of B) or by virtue of beneficial ownership of or control over a majority of the voting interests in B; and, for certainty and without limitation, if A owns or has control over shares to which are attached more than 50% of the votes
permitted to be cast in the election of directors to the board of directors (or the equivalent) of the Governing Body of B or A is the general partner of B, a limited partnership, then in each case A Controls B for this purpose, and the term
"Controlled" has the corresponding meaning;
"Corporate Trust Office" means the office of the Security Trustee, at which at any particular time its corporate trust business shall be principally
administered, which office on the date of execution of this Guarantee is located at 100 University Avenue, 11th Floor, Toronto ON M5J 2Y1;
"Corporation" means BIP Investment Corporation;
"Defaulted Senior Preferred Shares" has the meaning given to such term in Section 4.6(b);
"Event of Default" has the meaning given to such term in Section 4.2;
"Governing Body" means (a) with respect to a corporation or limited company, such corporation or limited company, (b) with respect to a limited liability company, a manager or managing partner of such limited
liability company, (c) with respect to a limited partnership, a general partner of such limited partnership (or if any such general partner is itself a partnership, such general partner's general partner), (d) with respect to a general partnership,
the managing partner (or if there is no managing partner, each partner), and (e) with respect to any other Person, the Person that has the power to determine the management and policies of such Person by status, and in the case of each of (a)
through (e) includes any Person to whom such Person has delegated any power or authority;
"Guarantor" means BIPC Holdings Inc.;
"Guarantor Order" or "Guarantor
Request" means, with respect to the Guarantor, a written request or order signed in the name of the Guarantor by any officer or director (or the equivalent) of the Governing Body of the Guarantor and delivered to the Security Trustee;
"Guarantor Preferred Securities" means, collectively, all senior preferred shares of the Guarantor, whether existing on the date of this Guarantee or created and issued at any time and from time to time after
the date hereof;
"Holders" means the registered holders of any of the Senior Preferred Shares from time to time, provided that, in determining whether the Holders of the requisite percentage of the aggregate Liquidation Amount
of outstanding Senior Preferred Shares have given any request, notice, consent or waiver hereunder, "Holders" shall not include the Guarantor or any Affiliate of the Guarantor;
"Liquidation Amount"
means, in respect of any securities of any series or class and any determination date, the amount to which the holders of such series or class are entitled in the event of a distribution of the assets of the issuer of such series or class upon the
liquidation, dissolution or winding-up of such issuer on such date, plus, without duplication, an amount equal to all accrued and unpaid distributions up to, but excluding, such date;
"MI 61-101" means
Multilateral Instrument 61-101 - Protection of Minority Security Holders in Special Transactions;
"OBCA" means the Business Corporations Act (Ontario);
"Officer's Certificate" means, with respect to the Guarantor, a certificate signed by any officer or director (or the equivalent) of the Governing Body of the Guarantor and delivered to the Security
Trustee;
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Guarantor, the Corporation, or any of their Affiliates or employees, and who shall be acceptable to the Security
Trustee;
"Pari Passu Guarantor Obligations" means, collectively: (a) the BIP Preferred Unit Guarantee Obligations, (b) all financial liabilities and obligations of the Guarantor to the holders of the
Guarantor Preferred Securities, including in respect of (i) any accrued and unpaid distributions on the Guarantor Preferred Securities, (ii) the applicable redemption price and all accrued and unpaid distributions up to, but excluding, the date
fixed for redemption with respect to the Guarantor Preferred Securities called for redemption, and (iii) the Liquidation Amount payable on the Guarantor Preferred Securities upon any voluntary or involuntary dissolution, liquidation or winding up of
the Guarantor, without regard to the amount of assets of the Guarantor available for distribution; and (c) all other financial liabilities and obligations of the Guarantor that rank pari passu with the financial liabilities and obligations
described in clauses (a) and (b) of this definition;
"Person" means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof;
"Privacy Laws" has the meaning given to such term in Section 5.14;
"Representing Party" has the
meaning given to such term in Section 5.16;
"Security Trustee" means Computershare Trust Company of Canada;
"Senior Guarantor Obligations" shall mean:
(a) all indebtedness (including any indebtedness to trade creditors), liabilities and obligations of the Guarantor, whether outstanding on the date of this Guarantee or
hereafter created, incurred, assumed or guaranteed; and
(b) all renewals, extensions,
restructurings, refinancings and refundings of any such indebtedness, liabilities or obligations,
except only for (i) the Senior Preferred Share Obligations, (ii) the Pari Passu Guarantor Obligations, and (iii)
the Subordinate Guarantor Obligations;
"Senior Preferred Share Obligations" means all financial liabilities and obligations of the Corporation to the Holders in respect of the Senior Preferred Shares
including or in respect of (a) any accrued and unpaid dividends on the Senior Preferred Shares, (b) the applicable redemption price and all accrued and unpaid dividends up to, but excluding, the date fixed for redemption with respect to Senior
Preferred Shares called for redemption, and (c) the Liquidation Amount payable on the Senior Preferred Shares upon a voluntary or involuntary dissolution, liquidation or winding up of the Corporation, without regard to the amount of assets of the
Corporation available for distribution;
"Senior Preferred Shares" means, collectively, all of the senior preferred shares of the Corporation that are issued from time to time pursuant to the constating
documents of the Corporation;
"Series" means a series of Senior Preferred Shares;
"Subordinate Guarantor Obligations" means, collectively, (a) all financial
liabilities and obligations of the Guarantor to the holders of all securities in the capital of the Guarantor with entitlements to Liquidation Amounts that are subordinate to the entitlements of the Guarantor Preferred Securities, and (b) all
indebtedness, liabilities and obligations of the Guarantor that are expressly stated to be subordinate to the Senior Guarantor Obligations, the Senior Preferred Share Obligations and the Pari Passu Guarantor Obligations;
"subsidiary entity" shall have the meaning set out in MI 61-101; and
"wholly-owned subsidiary entity" shall have the meaning set out in MI 61-101.
1.2 Compliance Certificates and Opinions
Upon any application or request by the Guarantor to the Security Trustee to take any action under any provision of this Guarantee, the Guarantor shall furnish to the Security Trustee an Officer's
Certificate stating that all conditions precedent, if any, provided for in this Guarantee (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and, if required by
the Security Trustee, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of certain
documents is specifically required by any provision of this Guarantee relating to such particular application or request, no additional certificate or opinion need be furnished.
In addition to
the foregoing, every certificate or opinion with respect to compliance with a covenant or condition provided for in this Guarantee (other than as otherwise specified herein) shall include:
(a) a statement that each individual signing such certificate or opinion has read and understood
such covenant or condition and the definitions herein relating thereto;
(b) a brief
statement as to the nature and scope of the examination or investigation and the assumption upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such covenant or
condition has been complied with.
1.3 Form of Documents Delivered to Security
Trustee
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Governing Body of the Guarantor may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect
to the matters upon which his or her certificate or opinion is based are erroneous. Any certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Governing Body of the Guarantor stating that the information with respect to such factual matters is in the possession of the Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Guarantee, they may, but need not, be consolidated and form one instrument.
1.4 Acts
of Holders
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Guarantee to be given or taken by one or more Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed by them in
writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Security Trustee and, where it is hereby expressly required, to the Guarantor and/or the Corporation.
Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of
any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Senior Preferred Share, shall be sufficient for any purpose of this Guarantee and conclusive in favour of the Security Trustee, the Guarantor and the
Corporation, if made in the manner provided in this Section.
(b) The fact and date of the
execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than its individual capacity, such certificate or affidavit shall also constitute sufficient
proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Security Trustee deems sufficient.
(c) If the Guarantor shall solicit from Holders any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Guarantor may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Guarantor shall have no obligation to do so. Such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the
first solicitation of such Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may
be given before or after such record date, but only Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite percentage of outstanding Senior
Preferred Shares, or Series thereof, have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Senior Preferred Shares or Series (as
applicable) shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this
Guarantee not later than eleven months after the record date.
1.5 Notices, Etc. to Security Trustee and Guarantor
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Guarantee to be made upon, given or furnished to, or filed
with:
(a) the Security Trustee, by any Holder, the Guarantor or the Corporation shall be
sufficient for every purpose hereunder if in writing and delivered, mailed (first-class postage prepaid) or sent by facsimile to the Security Trustee at 100 University Avenue, 11th Floor, Toronto ON M5J 2Y1 Attention: Manager, Corporate Trust,
Facsimile No. 416-981-9777; or
(b) the Guarantor by any Holder, the Security Trustee, or the
Corporation shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and delivered, mailed (first-class postage prepaid) or sent by facsimile to the Guarantor at 73 Front Street, 5th Floor, Hamilton
HM 12, Bermuda or at any other address previously furnished by it in writing to the Security Trustee, Attention: Corporate Secretary, Facsimile No. 441-296-4475 with copy to Brookfield Place, 181 Bay Street, Suite 300, Toronto ON M5J 2T3, Attention:
Secretary, Facsimile No. 416-369-2301; or
(c) the Corporation by any Holder, the Security
Trustee, or the Guarantor shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and delivered, mailed (first-class postage prepaid) or sent by facsimile to the Corporation addressed to it at 1500
Royal Centre, 1055 West Georgia Street, P.O. Box 11117, Vancouver BC V6E 4N7, or at any other address previously furnished by it in writing to the Security Trustee, Attention: Michael
Michael.Ryan@brookfield.com.
Any delivery made or facsimile sent on a day other than a Business Day, or after 3:00 p.m. (Toronto time) on a Business
Day, shall be deemed to be received on the next following Business Day. Anything mailed shall not be deemed to have been given until it is actually received. The Guarantor or the Corporation may from time to time notify the Security Trustee of a
change in address or facsimile number which thereafter, until changed by like notice, shall be the address or facsimile number of the Guarantor or the Corporation for all purposes of this Guarantee.
1.6 Notice to Holders; Waiver
Where this Guarantee provides for notice of any event to Holders by the Guarantor or the Security Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder at the Holder's address as it appears in the list of Holders as provided by the Corporation, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice or in any other manner from time to time permitted by applicable laws, including, without limitation, internet-based or other electronic communications. In any case where notice to Holders is given by mail, neither the
accidental failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders, but upon such failure to mail or such defect in any notice so mailed
being discovered, the notice (as corrected to address any defects) shall be mailed forthwith to such Holder. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Guarantee shall be in the English language.
Where this Guarantee provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Security Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
1.7 Effect of Headings and Table of Contents
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
1.8 Successors and Assigns
All covenants and agreements in this Guarantee by the Guarantor shall bind its
respective successors and assigns, whether so expressed or not.
1.9 Severability
Clause
In case any provision in this Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
1.10 Governing Law
This Guarantee shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
1.11 No Recourse Against Certain Persons
A director, officer, employee or securityholder, as such, of the Guarantor or the Governing Body of the Guarantor shall not have any liability for any obligations of the Guarantor under this
Guarantee or for any claim based on, in respect of or by reason of such obligations or its creation or any certificate, opinion, notice or other document delivered in connection with this Guarantee.
1.12 Multiple Originals
The
parties may sign any number of copies of this Guarantee. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Guarantee.
1.13 Language
Les parties
aux présentes ont exigé que la présente convention ainsi que tous les documents et avis qui s'y rattachent et/ou qui en decouleront soient rediges et exécutés en langue anglaise. The parties hereto have required that this
Guarantee and all documents and notices related thereto be drafted and executed in English.
1.14 Force Majeure
The
Security Trustee shall not be liable to any party to this Guarantee, or held in breach of this Guarantee by any party to this Guarantee, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason
of acts of God, riots, terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic or communication interruptions, disruptions or
failures). Performance times applicable to the Security Trustee's obligations under this Guarantee shall be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section.
ARTICLE 2
GUARANTEE
2.1 Guarantee
The Guarantor
irrevocably and unconditionally guarantees in favour of the Holders the due and punctual payment of the Senior Preferred Share Obligations, regardless of any defense (except for the defense of the payment in full thereof), right of set-off or
counterclaim which the Guarantor may have or assert. If the Corporation shall fail to pay any of the Senior Preferred Share Obligations when due, the Guarantor shall pay to the Holders entitled to receive such Senior Preferred Share Obligations
immediately after demand made in writing by one or more such Holders or the Security Trustee, but in any event within 15 days of any failure by the Corporation to pay the Senior Preferred Share Obligations when due, without any evidence that the
Holders or the Security Trustee has demanded that the Corporation pay such Senior Preferred Share Obligations or that the Corporation has failed to do so. The Guarantor's obligation to pay Senior Preferred Share Obligations may be satisfied by (i)
direct payment to the applicable Holders or (ii) payment to the applicable Holders through the facilities of the Security Trustee. The Guarantor shall give prompt written notice to the Security Trustee in the event it makes a direct payment to the
Holders hereunder. The Guarantor shall be jointly and severally liable with any Additional Guarantors for all obligations of the Guarantor hereunder.
2.2 Ranking of Guarantee
Notwithstanding anything to the contrary in this Guarantee, the obligations of the Guarantor hereunder are subordinate to all Senior Guarantor Obligations and rank pari passu with all Pari
Passu Guarantor Obligations on a pro rata basis.
2.3 Waiver of
Notice
The Guarantor hereby waives notice of acceptance of this Guarantee.
2.4 Guarantee Absolute
The Guarantor guarantees that the Senior Preferred Share Obligations will be paid strictly
in accordance with the terms of the Senior Preferred Shares and this Guarantee within the time required by Section 2.1, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any such terms or the rights
of the Holders with respect thereto. The liability of the Guarantor under this Guarantee shall be absolute and unconditional irrespective of:
(a) any sale, transfer or assignment by any Holder of any Senior Preferred Shares or any right, title, benefit or interest of such Holder therein or thereto;
(b) any amendment or change in or to, or any waiver of, any of the terms of the Senior Preferred
Shares;
(c) any change in the name, objects, constitution, capacity, capital or the
constating documents of the Guarantor or the Corporation;
(d) any partial payment by the
Corporation, or any release or waiver, by operation of law or otherwise, of the performance or observance by the Corporation of any express or implied agreement, covenant, term or condition relating to the Senior Preferred Shares to be performed or
observed by the Corporation;
(e) the extension of time for the payment by the Corporation of
all or any portion of the Senior Preferred Share Obligations or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Senior Preferred Shares;
(f) any failure, omission, delay or lack of diligence on the part of the Holders to enforce,
assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Senior Preferred Shares, or any action on the part of the Corporation granting indulgence or extension of any kind;
(g) subject to Section 4.1(b), the recovery of any judgment against the Corporation, any
voluntary or involuntary liquidation, dissolution, winding up, merger or amalgamation of the Corporation or the Guarantor, any sale or other disposition of all or substantially all of the assets of the Corporation or the Guarantor, any judicial or
extrajudicial receivership, insolvency, bankruptcy, assignment for the benefit of, or proposal to, creditors, any reorganization, moratorium, arrangement or composition with creditors, or any readjustment of debt of, or other proceedings affecting
the Corporation, the Guarantor or any of the assets of the Corporation or the Guarantor;
(h) any circumstance, act or omission that
would prevent subrogation operating in favour of the Guarantor;
(i) any invalidity of, or
defect or deficiency in, the Senior Preferred Shares or this Guarantee;
(j) the settlement
or compromise of any obligation guaranteed hereby or hereby incurred; or
(k) any other
circumstance, act or omission that might otherwise constitute a defence available to, or a discharge of, the Corporation or the Guarantor in respect of any of the Senior Preferred Share Obligations (other than, and to the extent of, the payment or
satisfaction thereof),
it being the intent of the Guarantor that its obligations in respect of the Senior Preferred Share Obligations shall be absolute and unconditional under all circumstances and shall not be
discharged except by payment in full of the Senior Preferred Share Obligations. The Holders shall not be bound or obliged to exhaust their recourse against the Corporation or any other Persons or to take any other action before being entitled to
demand payment from the Guarantor hereunder.
There shall be no obligation of the Holders to give notice to, or obtain the consent of the Guarantor with respect to the happening of any of the
foregoing.
2.5 Continuing Guarantee
This Guarantee shall apply to and secure any ultimate balance due or remaining due to the Holders in respect of the Senior Preferred Share Obligations and shall be binding as an absolute and
continuing obligation of the Guarantor. This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment of any of the Senior Preferred Share Obligations must or may be rescinded, is declared or may become
voidable, or must or may otherwise be returned by any Holders for any reason, including the insolvency, bankruptcy, dissolution or reorganization of the Corporation or upon or as a result of the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to the Corporation or any substantial part of its property, all as though such payment had not been made. If at any time the Corporation is precluded from making payment when due in respect of any Senior
Preferred Share Obligations by reason of the provisions of the BCBCA or otherwise, such amounts shall nonetheless be deemed to be due and payable by the Corporation to the Holders for all purposes of this Guarantee and the Senior Preferred Share
Obligations shall be immediately due and payable to the Holders. This is a guarantee of payment, and not merely a deficiency or collection guarantee.
2.6 Rights of Holders
The
Guarantor expressly acknowledges that: (i) this Guarantee will be deposited with the Security Trustee to be held for the benefit of the Holders; and (ii) the Security Trustee has the right to enforce this Guarantee on behalf of the Holders.
2.7 Subrogation
The
Guarantor shall have no right of subrogation in respect of any payment made to the Holders hereunder until such time as the Senior Preferred Share Obligations have been fully satisfied. In the case of the liquidation, dissolution, winding-up or
bankruptcy of the Corporation (whether voluntary or involuntary), or if the Corporation makes an arrangement or compromise or proposal with its creditors, the Holders shall have the right to rank for their full claim and to receive all dividends or
other payments in respect thereof until their claims in respect of the Senior Preferred Share Obligations have been paid in full, and the Guarantor shall continue to be liable to the Holders for any balance which may be owing to the Holders by the
Corporation in respect thereof. The Senior Preferred Share Obligations shall not, however, be released, discharged, limited or affected by the failure or omission of the Holders to prove the whole or part of any claim against the Corporation. If any
amount is paid to the Guarantor on account of any subrogation arising hereunder at any time when Senior Preferred Share Obligations are due and owing and have not been fully satisfied, such amount shall be held in trust by the Guarantor for the
benefit of the Holders entitled thereto and shall forthwith be paid to such Holders to be credited and applied against the Senior Preferred Share Obligations.
2.8 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Corporation with respect to the Senior Preferred Shares and that the Guarantor shall be liable to pay the Senior Preferred Share Obligations pursuant to the terms of this Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (k), inclusive, of Section 2.4 and regardless of whether the Holders make a demand upon the Guarantor. The Guarantor will pay the Senior Preferred Share Obligations in accordance with this Guarantee without
regard to any equities between it and the Corporation or any defence or right of set-off, compensation, abatement, combination of accounts or cross-claim that it or the Corporation may have.
2.9 Guarantor to Investigate Financial Condition of the Corporation
The Guarantor acknowledges that it has fully informed itself about the financial condition of the Corporation. The Guarantor assumes full responsibility for keeping fully informed of the financial
condition of the Corporation and all other circumstances affecting the Corporation's ability to pay the Senior Preferred Share Obligations.
ARTICLE 3
SUBORDINATION OF OBLIGATIONS TO SENIOR GUARANTOR OBLIGATIONS AND PARI PASSU RANKING WITH CERTAIN OTHER GUARANTOR
OBLIGATIONS
3.1 Applicability of Article
The obligations of the Guarantor hereunder shall be subordinate and subject in right of payment, to the extent and in the manner hereinafter set forth in the following sections of this Article 3, to
the prior payment in full of all Senior Guarantor Obligations, and are pari passu, on a pro rata basis, with all other Pari Passu Guarantor Obligations and the Security Trustee and each Holder, as a condition to and by acceptance of
the benefits conferred hereby, agrees to and shall be bound by the provisions of this Article 3.
3.2 Order of Payment
Upon
any distribution of the assets of the Guarantor on any dissolution, winding up, liquidation or reorganization of the Guarantor (whether in bankruptcy, insolvency or receivership proceedings, or upon an "assignment for the benefit of creditors" or
any other marshalling of the assets and liabilities of the Guarantor, or otherwise):
(a) all
Senior Guarantor Obligations shall first be paid in full, or provision made for such payment, before any payment is made on account of the Senior Preferred Share Obligations;
(b) the claim of the Holders in respect of the Senior Preferred Share Obligations will rank
pari passu with the claims of all holders of the Pari Passu Guarantor Obligations and each such Person will be entitled to receive its pro rata share of the remaining assets of the Guarantor based on the amount of its Senior Preferred
Share Obligations or Pari Passu Guarantor Obligations, as applicable; and
(c) any payment or
distribution of assets of the Guarantor, whether in cash, property or securities, to which the Holders or the Security Trustee on behalf of such Holders would be entitled except for the provisions of this Article 3, shall be paid or delivered by the
trustee in bankruptcy, receiver, assignee for the benefit of creditors, or other liquidating agent making such payment or distribution, directly to the holders of Senior Guarantor Obligations or Pari Passu Guarantor Obligations, as applicable, to
the extent that they are entitled thereto pursuant to this Article 3, or to their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Guarantor
Obligations or Pari Passu Guarantor Obligations may have been issued, to the extent necessary to pay all such Senior Guarantor Obligations or Pari Passu Guarantor Obligations.
3.3 Subrogation to Rights of Holders of Senior Guarantor Obligations
Subject to the payment in full of all Senior Guarantor Obligations, Holders shall be subrogated to the rights of the holders of Senior Guarantor Obligations to receive payments or distributions of
assets of the Guarantor (to the extent of the application thereto of such payments or other assets which would have been received by the Holders but for the provisions hereof) until the Senior Preferred Share Obligations shall be paid in full, and
no such payments or distributions to Holders of cash, property or securities, which otherwise would be payable or distributable to the holders of such Senior Guarantor Obligations pursuant to this Article 3, shall, as between the Guarantor, its
creditors (other than the holders of Senior Guarantor Obligations and Pari Passu Guarantor Obligations), and the Holders, be deemed to be a payment by the Guarantor to the holders of such Senior Guarantor Obligations or on account of such Senior
Guarantor Obligations, it being understood that the provisions of this Article 3 are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Guarantor Obligations, on the
other hand.
3.4 Obligation to Pay Not Impaired
Nothing contained in this Article 3 or elsewhere in this Guarantee is intended to or shall impair, as between the Guarantor, its creditors (other than the holders of Senior Guarantor Obligations),
and the Holders, the obligation of the Guarantor, which is absolute and unconditional, to pay to the Holders the Senior Preferred Share Obligations in accordance herewith, as and when the same shall become due and payable in accordance with this
Guarantee, or affect the relative rights of the Holders and creditors of the Guarantor (other than the holders of the Senior Guarantor Obligations and Pari Passu Guarantor Obligations); nor shall anything herein or therein prevent the Security
Trustee or the Holder from exercising all remedies otherwise permitted by applicable law upon default under this Guarantee, subject to the rights, if any, under this Article 3 of the holders of Senior Guarantor Obligations or Pari Passu Guarantor
Obligations in respect of cash, property or securities of the Guarantor that are received upon the exercise of any such remedy.
3.5 No Payment if Senior Guarantor Obligations in Default
Upon the acceleration, demand or maturity of any Senior
Guarantor Obligations whether by lapse of time, acceleration, demand or otherwise, then, except as provided in Section 3.6, such matured Senior Guarantor Obligations shall first be paid in full, or shall first have been duly provided for, before any
payment by the Guarantor is made on account of the Senior Preferred Share Obligations.
In case of default with respect to any Senior Guarantor Obligations that permits the holders thereof to
accelerate the maturity thereof, unless and until such default shall have been cured or waived or shall have ceased to exist, no payment (by purchase of the Senior Preferred Shares or otherwise) shall be made by the Guarantor with respect to the
Senior Preferred Share Obligations, and neither the Security Trustee nor the Holders shall be entitled to demand, institute proceedings for the collection of, or receive any payment or benefit from the Guarantor (including without limitation by
set-off, combination of accounts or otherwise in any manner whatsoever) on account of the Senior Preferred Share Obligations after the happening of such a default (except as provided in Section 3.7), and unless and until such default shall have been
cured or waived or shall have ceased to exist, such payments received from the Guarantor shall be held in trust for the benefit of, and, if and when the Senior Guarantor Obligations shall have become due and payable, shall be paid over to, the
holders of such Senior Guarantor Obligations or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing an amount of such Senior Guarantor Obligations remaining unpaid, until
all such Senior Guarantor Obligations shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Guarantor Obligations.
The fact
that any payment hereunder is prohibited by this Section 3.5 shall not prevent the failure to make such payment from being an Event of Default hereunder.
3.6 Payment on Senior Preferred Shares Permitted
Nothing contained in this Article 3 or elsewhere in this
Guarantee, or in any of the Senior Preferred Shares, shall affect the obligation of the Guarantor to make, or prevent the Guarantor from making, at any time except during the pendency of any dissolution, winding up or liquidation of the Guarantor or
reorganization proceedings specified in Section 3.2 affecting the affairs of the Guarantor, any payment on account of the Senior Preferred Share Obligations, except that the Guarantor shall not make any such payment other than as contemplated by
this Article 3, if it is in default in payment of any of its Senior Guarantor Obligations. The fact that any such payment is prohibited by this Section 3.6 shall not prevent the failure to make such payment from being an Event of Default hereunder.
Nothing contained in this Article 3 or elsewhere in this Guarantee, or in any of the Senior Preferred Shares, shall prevent the application by the Security Trustee of any moneys deposited with the Security Trustee hereunder for the purpose so
deposited, to the payment of or on account of the Senior Preferred Share Obligations unless and until the Security Trustee shall have received written notice from the Guarantor or from any holder of Senior Guarantor Obligations or from the
representative of any such holder of default with respect to any Senior Guarantor Obligations permitting the holders thereof to accelerate the maturity thereof and that all applicable notices have been issued and cure periods have expired in respect
of such default.
3.7 Confirmation of Subordination or Pari Passu Ranking
As a condition to the benefits conferred hereby on each Holder, each such Holder by acceptance of the benefits conferred hereby authorizes and directs the Security Trustee, on such Holder's behalf,
to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article 3, and appoints the Security Trustee as such Holder's attorney-in-fact for any and all such purposes. Upon request of the Guarantor,
and upon being furnished with an Officer's Certificate stating that one or more named persons are holders of Senior Guarantor Obligations or Pari Passu Guarantor Obligations, or the representative or representatives of such holders, or the trustee
or trustees under which any instrument evidencing such Senior Guarantor Obligations or Pari Passu Guarantor Obligations may have been issued, and specifying the amount and nature of such Senior Guarantor Obligations or Pari Passu Guarantor
Obligations, as applicable, the Security Trustee shall enter into a written agreement or agreements with the Guarantor and the person or persons named in such Officer's Certificate providing that such person or persons are entitled to all the rights
and benefits of this Article 3 as the holder or holders, representative or representatives, or trustee or trustees of such Senior Guarantor Obligations or Pari Passu Guarantor Obligations, as applicable, specified in such Officer's Certificate and
in such agreement. Such agreement shall be conclusive evidence that the indebtedness specified therein is Senior Guarantor Obligations or Pari Passu Guarantor Obligations, as applicable, however, nothing herein shall impair the rights of any holder
of Senior Guarantor Obligations or Pari Passu Guarantor Obligations who has not entered into such an agreement.
3.8 Security Trustee May Hold Guarantor Obligations and Pari Passu Guarantor
Obligations
The Security Trustee is entitled to all the rights set forth in this Article 3 with respect to any Senior Guarantor Obligations or Pari Passu Guarantor Obligations at the time
held by it, to the same extent as any other holder of Senior Guarantor Obligations or Pari Passu Guarantor Obligations, and nothing in this Guarantee deprives the Security Trustee of any of its rights as such holder.
3.9 Rights of Holders of Other Guarantor Obligations and Pari Passu Guarantor
Obligations Not Impaired
No right of any present or future holder of any Senior Guarantor Obligations or Pari Passu Guarantor Obligations to enforce the subordination herein will at any time
or in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or by any non-compliance by the Guarantor with the terms, provisions and covenants of this Guarantee, regardless of any knowledge thereof which any
such holder may have or be otherwise charged with.
3.10 Altering Other Guarantor
Obligations and Pari Passu Guarantor Obligations
A holder of Senior Guarantor Obligations or Pari Passu Guarantor Obligations has the right to extend, renew, modify or amend the terms of
such Senior Guarantor Obligations or Pari Passu Guarantor Obligations, as applicable, or any security therefor and to release, sell or exchange such security and otherwise to deal freely with the Guarantor or any other Person, all without notice to
or consent of the Holders or the Security Trustee and without affecting the subordination herein, the liabilities and obligations of the parties to this Guarantee or the Holders or the Security Trustee.
3.11 Additional Indebtedness
This Guarantee does not restrict the Guarantor from incurring any indebtedness, liabilities or obligations or from encumbering, mortgaging, pledging or charging its properties to secure any
indebtedness, liabilities or obligations.
ARTICLE 4
TERMINATION AND REMEDIES
4.1 Termination of Guarantee
(a) This Guarantee shall terminate upon the satisfaction of the following:
(i) either
(A) all of the outstanding Senior Preferred Shares shall have been purchased and cancelled; and/or
(B) all of the Senior Preferred Shares shall have been redeemed,
and, in each case, all amounts payable on the Senior Preferred Shares, including all accrued and unpaid dividends, shall have been paid in full; and
(ii) all other sums payable by the Corporation in respect of the Senior Preferred Share
Obligations have been paid.
The Guarantor shall notify the Security Trustee in writing that the requirements set out in Sections 4.1(a)(i) and (ii) have been satisfied.
(b) This Guarantee shall terminate automatically upon the occurrence of any of the following
events:
(i) the Guarantor becomes a wholly-owned subsidiary entity of an Additional
Guarantor; or
(ii) the Guarantor becomes a wholly-owned subsidiary entity of BIP or
Brookfield Infrastructure L.P.
The Guarantor shall notify the Security Trustee in writing of the occurrence of either of the events under this Section 4.1(b) and the termination of this
Guarantee as a result thereof.
(c) All of the rights, obligations and liabilities of the
Guarantor pursuant to this Guarantee shall terminate upon the conveyance, distribution or transfer (including pursuant to a reorganization, consolidation, liquidation, dissolution, sale of any collateral, winding up, merger, amalgamation,
arrangement or otherwise) of all or substantially all of the Guarantor's properties, securities and assets to a Person that has assumed the obligations of the Guarantor pursuant to Article 7.
(d) Upon any termination of this Guarantee the Security Trustee shall, upon request of the
Guarantor, provide to the Guarantor written documentation acknowledging the termination of this Guarantee. Notwithstanding the termination of this Guarantee, the obligations of the Guarantor to the Security Trustee under Section 5.3 shall
survive.
4.2 Suits for Enforcement by the Security Trustee
In the event that the Guarantor fails to pay any Senior Preferred Share Obligations as required pursuant to the terms of this Guarantee (an "Event of Default"), the applicable Holders may,
subject to Section 4.6, institute judicial proceedings for the collection of the moneys so due and unpaid, may prosecute such proceedings to judgment or final decree and may enforce the same against the Corporation and/or the Guarantor and may
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Guarantor, subject to the provisions of Article 3.
If an Event of Default occurs and
is continuing, the Security Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders, upon being indemnified and funded to its satisfaction by the Holders, by such appropriate judicial proceedings as the
Security Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Guarantee or in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
4.3 Security Trustee May File Proofs of Claim
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Guarantor or the property of the
Guarantor and while such proceeding is pending, the Security Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for any Senior Preferred Share Obligation then due and payable and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Security Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Security Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding;
and
(b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same in accordance with this Guarantee,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Security Trustee.
Nothing herein contained shall be deemed to authorize the Security Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Senior Preferred Shares or the rights of any Holder thereof or to authorize the Security Trustee to vote in respect of the claim of any
Holder in any such proceeding.
4.4 Security Trustee May Enforce Claims Without Possession of Senior Preferred
Shares
All rights of action and claims under this Guarantee may be prosecuted and enforced by the Security Trustee without the possession of any of the Senior Preferred Shares in any
proceeding relating thereto, and any such proceeding instituted by the Security Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Security Trustee, its agents and counsel, be for the rateable benefit of the Holders in respect of which such judgment has been recovered.
4.5 Application of Money Collected
Any money collected by the Security Trustee pursuant to this Article shall be applied in the following order:
FIRST, to the
payment of all amounts due to the Security Trustee including, without limitation, the reasonable compensation, expenses, disbursements and advances of the Security Trustee in or about the execution of its trust, or otherwise in relation hereto, with
interest thereon as herein provided;
SECOND, to the payment of all amounts due to Holders in respect of the costs, charges, expenses and advances incurred in connection with
enforcing their rights hereunder;
THIRD, to the payment of all Senior Preferred Share Obligations then due and unpaid on a pro rata basis; and
FOURTH, the balance, if any, to the Person or Persons entitled thereto.
4.6 Limitation on Suits
No Holder shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Guarantee, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Security Trustee of a continuing Event of Default with respect to this Guarantee;
(b) the Holders representing not less than 25% of the aggregate Liquidation Amount of all of the
then outstanding Senior Preferred Shares affected by such Event of Default ("Defaulted Senior Preferred Shares") shall have made written request to the Security Trustee to institute proceedings in respect of such Event of Default in its own
name as Security Trustee hereunder;
(c) the Holders of the Defaulted Senior Preferred Shares
have provided to the Security Trustee reasonable funding, if requested by the Security Trustee, and reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Security Trustee, for 15 days after its receipt of such notice, request and offer of
indemnity, has failed to institute any such proceeding; and
(e) no direction inconsistent
with such written request has been given to the Security Trustee during such 15-day period by the Holders representing a majority of the aggregate Liquidation Amount of the Defaulted Senior Preferred Shares;
it being understood and intended that no Holder shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Guarantee to affect, disturb or prejudice the rights of any other
Holder, or to obtain or to seek to obtain priority or preference over any other Holder or to enforce any right under this Guarantee, except in the manner herein provided and for the equal and rateable benefit of all Holders.
4.7 Restoration of Rights and Remedies
If the Security Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Guarantee and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Security Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Guarantor, the Security Trustee and the Holders shall be restored to their respective former
positions hereunder and thereafter all rights and remedies of the Security Trustee and the Holders shall continue as though no such proceeding had been instituted.
4.8 Rights and Remedies Cumulative
No right or remedy herein conferred upon or reserved to the Security Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
4.9 Delay or Omission Not Waiver
No delay or omission of the Security Trustee or of any Holder to exercise any right or remedy accruing upon an Event of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein, provided that any Event of Default that is cured by the Guarantor will thereafter cease to constitute an Event of Default for purposes of this Guarantee. Every right and remedy given by this Article
or by law to the Security Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Security Trustee or by the Holders, as the case may be.
4.10 Control by Holders
The
Holders representing not less than a majority of the aggregate Liquidation Amount of the Defaulted Senior Preferred Shares shall have the right, after the occurrence and during the continuance of an Event of Default, to direct the time,
method and place of conducting any proceeding for any remedy available to the Security Trustee, or exercising any trust or power conferred on the Security Trustee, with respect to this Guarantee, provided that in each case:
(a) such direction shall not be in conflict with any rule of law or with this Guarantee;
(b) the Security Trustee may take any other action deemed proper by the Security Trustee which
is not inconsistent with such direction; and
(c) the Security Trustee need not take any
action which might involve it in personal liability or be unjustly prejudicial to the Holders not consenting to any such direction.
4.11 Waiver of Stay or Extension Laws
The Guarantor covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Guarantee; and the Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the
Security Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
4.12 Undertaking for Costs
All parties to this Guarantee agree, and each Holder by acceptance of the benefits
hereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Guarantee, or in any suit against the Security Trustee for any action taken, suffered or omitted
by it as Security Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable lawyers' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to (a) any suit instituted by the Guarantor, (b) any suit instituted by
the Security Trustee, or (c) any suit instituted in accordance with this Guarantee by any Holder for the enforcement of the payment of the Senior Preferred Share Obligations.
ARTICLE 5
THE
SECURITY TRUSTEE
5.1 Certain Duties and Responsibilities
(a) The Security Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Guarantee, and no implied covenants or obligations shall be read into this Guarantee against the Security Trustee.
(b) The Security Trustee, in exercising its powers and discharging its duties prescribed or conferred by this Guarantee, shall
(i) act honestly and in good faith with a view to the best interests of the Holders, and
(ii) exercise that degree of care, diligence and skill a reasonably prudent trustee, appointed in
respect of a guarantee indenture would exercise in comparable circumstances.
(c) In the
absence of bad faith on its part, the Security Trustee, in the exercise of its rights and duties hereunder, may conclusively act and rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates,
opinions or other evidence furnished to the Security Trustee and conforming to the requirements of this Guarantee. The Security Trustee shall not be liable for or by reason of any statements of fact or recitals in this Guarantee or be required to
verify the same, but all such statements or recitals are and shall be deemed to be made by the Guarantor (or by its agents). The Security Trustee shall not in any way be responsible for the consequence of any breach on the part of the Guarantor (or
by its agents) of any of the Guarantor's covenants herein.
(d) No provision of this
Guarantee shall be construed to relieve the Security Trustee from the duties imposed on it in Section 5.1(b) or from liability for its own gross negligence or its own wilful misconduct, except that:
(i) this Section 5.1(d) shall not be construed to limit the effect of Section 5.1(a) and
(b);
(ii) the Security Trustee shall not be liable for any error of judgment made in good
faith by any of its officers, unless it shall be proved that the Security Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Security Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with an appropriate direction of the
Holders pursuant to Section 4.10 relating to the time, method and place of conducting any proceeding for any remedy available to the Security Trustee, or exercising any trust or power conferred upon the Security Trustee, under this Guarantee;
and
(iv) no provision of this Guarantee shall require the Security Trustee to expend or risk its own
funds or otherwise incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers except as herein expressly provided.
(e) Whether or not herein expressly so provided, every provision of this Guarantee relating to
the conduct or affecting the liability of or affording protection to the Security Trustee shall be subject to the provisions of this Section.
5.2 Certain Rights of Security Trustee
Subject to the provisions of Section 5.1:
(a) the Security Trustee may rely absolutely and shall be protected in acting or refraining from
acting upon any resolution, Officer's Certificate or other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, or other paper or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth or accuracy of any information therein contained;
(b) any order, request or direction of the Guarantor mentioned herein shall be sufficiently
evidenced by a Guarantor Request or Guarantor Order and any resolution shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Guarantee the Security Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Security Trustee (unless other evidence be herein specifically prescribed) may act and rely upon an Officer's Certificate (i) as evidence of the truth of any statements of fact, and (ii) to the effect that any particular
dealing or transaction or step or thing is, in the opinion of the officers so certifying, expedient, as evidence that it is expedient; provided that the Security Trustee may in its sole discretion, acting reasonably, require from the Guarantor or
otherwise further evidence or information before acting or relying on such certificate;
(d) the Security Trustee may employ or retain such agents, counsel and other assistants as it
may reasonably require for the proper determination and discharge of its duties hereunder and shall be entitled to receive reasonable remuneration for all services performed by it and compensation for all disbursements, costs and expenses made or
incurred by it in the discharge of its duties hereunder and shall not be responsible for any misconduct on the part of any of them, any such costs and expenses which shall immediately become and form part of the Security Trustee's fees
hereunder;
(e) the Security Trustee may, in relation to this Guarantee, act and rely on the
opinion or advice of or on information obtained from any counsel, notary, valuer, surveyor, engineer, broker, auctioneer, accountant or other expert, whether retained by the Security Trustee or by the Guarantor or otherwise;
(f) the Security Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in reliance thereon;
(g) the Security Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee at the request or direction of any of the Holders
pursuant to this Guarantee, unless such Holders shall have furnished to the Security Trustee reasonable funding and a reasonable indemnity, satisfactory to the Security Trustee, to protect and hold harmless the Security Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or direction and/or damage it may suffer by reason thereof as a condition to the commencement or continuation of such act, action or proceeding. The Security
Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding require the Holders at whose instance it is acting, to deposit with the Security Trustee the share certificates held by them respecting the
Senior Preferred Shares for which such share certificates the Security Trustee shall issue receipts;
(h) the Security Trustee shall not be required to take notice of any default under this
Guarantee, other than payment of any moneys required by any provision of this Guarantee to be paid to it, unless and until notified in writing of such default, which notice shall clearly set out the nature of the default desired to be brought to the
attention of the Security Trustee;
(i) prior to the occurrence of an Event of Default under
this Guarantee and after the curing of any such Event of Default which may have occurred, the Security Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, or other paper or document or any investigation of the books and records of the Guarantor (but the Security Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Security Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Guarantor, personally or by agent or
attorney), unless requested to do so by the Act of the Holders representing a majority of the aggregate Liquidation Amount of all of the then outstanding Defaulted Senior Preferred Shares; provided, however, that the Security Trustee may require
reasonable indemnity against the costs, expenses or liabilities likely to be incurred by it in the making of such investigation; and
(j) the Security Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the
Security Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. Any solicitors employed or consulted by the Security Trustee as counsel may, but need not be
solicitors for the Guarantor.
5.3 Protection of Security Trustee
By way of supplement to the provisions of any law for the time being relating to trustees, it is expressly declared and agreed as follows:
(a) the recitals contained herein, shall be taken as the statements of the Guarantor, and the
Security Trustee shall not be liable for or assume any responsibility for their correctness;
(b) the Security Trustee makes no representations as to, and shall not be liable for, the
validity or sufficiency of this Guarantee;
(c) nothing herein contained shall impose any
obligation on the Security Trustee to see or to require evidence of registration or filing (or renewals thereof) of this Guarantee or any instrument ancillary or supplemental hereto;
(d) the Security Trustee shall not be bound to give any notice of the execution hereof;
(e) the Security Trustee shall not incur any liability or responsibility whatever or be in any
way responsible for the consequence of any breach on the part of the Guarantor of any of the covenants herein contained or of any act of the agents or servants of the Guarantor; and
(f) the Corporation shall indemnify the Security Trustee (including its directors, officers,
employees, representatives and agents) for, and hold it harmless against, any claim, demand, suit, loss, liability or expense (including any and all reasonable legal and adviser fees and disbursements) incurred without gross negligence or bad faith
on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. This indemnity will survive the termination or discharge of this Guarantee and the resignation or removal of the Security Trustee.
5.4 Security Trustee Not Required to Give Security
The Security Trustee shall not be required to give security for the execution of the trusts or its conduct or administration hereunder.
5.5 No Person Dealing with Security Trustee Need Enquire
No Person dealing with the Security Trustee shall be concerned to enquire whether the powers that the Security Trustee is purporting to exercise have become exercisable, or whether any money remains
due upon the Senior Preferred Shares or to see to the application of any money paid to the Security Trustee.
5.6 May Hold Senior Preferred
Shares
Subject to applicable law, the Security Trustee, in its individual or in any other capacity, may become the owner or pledgee of the Senior Preferred Shares and, subject to Section
5.8, may otherwise deal with the Guarantor with the same rights it would have if it were not the Security Trustee, and without being liable to account for any profit made thereby.
5.7 Moneys Held in Trust
Upon receipt of a direction from the Guarantor, the Security Trustee shall invest funds held by the Security Trustee pursuant to this Guarantee in Authorized Investments in its name in accordance
with such direction. Any direction from the Guarantor to the Security Trustee shall be in writing and shall be provided to the Security Trustee no later than 9:00 a.m. ET on the day on which the investment is to be made. Any such direction received
by the Security Trustee after 9:00 a.m. ET or received on a non-Business Day, shall be deemed to have been given prior to 9:00 a.m. ET the next Business Day. Any direction from the Guarantor for the release of the funds must be received prior to
11:00 a.m. ET on the day on which the release of funds is to be made. Any such direction for the release of funds received after 11:00 a.m. ET or on a non-Business Day, will be handled on a commercially reasonable efforts basis and may result in
funds being released on the next Business Day. For the purposes of this Section, "Authorized Investments" means short term interest bearing or discount debt obligations issued or guaranteed by the Government of Canada or a Province or a
Canadian chartered bank (which may include an Affiliate or related party of the Security Trustee) provided that such obligation is rated at least R1 (middle) by DBRS Limited or an equivalent rating service.
In the event that the Security Trustee does not receive a direction or only a partial direction, the Security Trustee may hold cash balances constituting part or all of the funds received by it
hereunder and may, but need not, invest same in its deposit department, the deposit department of one of its Affiliates, or the deposit department of a Canadian chartered bank; but the Security Trustee, its Affiliates or a Canadian chartered bank
shall not be liable to account for any profit to any parties to this Guarantee or to any other Person or entity other than at a rate, if any, established from time to time by the Security Trustee, its Affiliates or a Canadian chartered bank. For the
purpose of this Section, "Affiliate" means affiliated companies within the meaning of the OBCA, and includes Computershare Investor Services Inc. and each of its affiliates within the meaning of the OBCA.
5.8 Conflict of Interest
(a) The Security Trustee represents to the Guarantor that at the time of the execution and
delivery hereof and to the best of the Security Trustee's knowledge and belief, no material conflict of interest exists in respect of the Security Trustee's role as a fiduciary hereunder and agrees that in the event of a material conflict of
interest arising hereafter it will, within 90 days after becoming aware that a material conflict of interest exists, either eliminate the same or resign its trust hereunder.
(b) If, notwithstanding Section 5.8(a), the Security Trustee has a material conflict of
interest, the validity and enforceability of this Guarantee shall not be affected in any manner whatsoever by reason only of the existence of such material conflict of interest.
(c) If the Security Trustee contravenes Section 5.8(a), the Holders representing not less than
25% of the aggregate Liquidation Amount of all of the then outstanding Senior Preferred Shares affected thereby may apply to the Ontario Superior Court of Justice for an order that the Security Trustee be replaced, and such court may make an order
on such terms as it thinks fit.
5.9 Corporate Trustee Required;
Eligibility
There shall at all times be a trustee hereunder which shall be a corporation resident or authorized to carry on the business of a trust company in Canada. Neither the Guarantor
nor any Affiliate of the Guarantor shall serve as trustee. If at any time the Security Trustee shall cease to be eligible in accordance with the provisions of this Section, the Security Trustee shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
5.10 Resignation and Removal;
Appointment of Successor
(a) Notwithstanding any other provisions hereof, no resignation
or removal of the Security Trustee and no appointment of a successor trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor trustee in accordance with the applicable requirements of Section
5.11.
(b) The Security Trustee may resign its trust and be discharged from all further
duties and liabilities hereunder at any time with respect to the Guarantee by giving to the Guarantor 60 days' notice in writing or such shorter notice as the Guarantor may accept as sufficient. If the instrument of acceptance by a successor trustee
required by Section 5.11 shall not have been delivered to the Security Trustee within 60 days after the giving of such notice of resignation, the resigning trustee may apply to the Ontario Superior Court of Justice for an order for the appointment
of a successor trustee with respect to the Guarantee.
(c) The Security Trustee may be
removed at any time by the Guarantor, except during an Event of Default.
(d) If any
time:
(i) the Security Trustee shall fail to comply with Section 5.8(a); or
(ii) the Security Trustee shall cease to be eligible under Section 5.9 and shall fail to resign
after written request to do so by the Guarantor; or
(iii) the Security Trustee shall be dissolved, shall become incapable of acting or shall become
or be adjudged a bankrupt or insolvent or a receiver of the Security Trustee or of its property shall be appointed or any public officer shall take charge or control of the Security Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case the Guarantor by Board Resolution may remove the Security Trustee.
(e) If the Security Trustee shall resign, be removed or become incapable of acting or if a
vacancy shall occur in the office of the Security Trustee for any other reason, the Guarantor, by Board Resolution, shall promptly appoint a successor trustee or trustees and shall comply with the applicable requirements of Section 5.11. If, within
one year after such resignation, removal or incapability or the occurrence of such vacancy, a successor trustee has not been successfully appointed in accordance with the terms hereof, a successor trustee shall be appointed by Act of the Holders
representing a majority of the aggregate Liquidation Amount of all of the then outstanding Senior Preferred Shares and the successor Security Trustee so appointed by the Holders shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 5.11, become the successor trustee. If no successor trustee shall have been so appointed by the Guarantor or the Holders and such appointment accepted in the manner required by Section 5.11, the Security
Trustee (at the Guarantor's expense) or any Holder who is a bona fide Holder may, on behalf of such Holder and all other Holders, apply to the Ontario Superior Court of Justice for any order for the appointment of a successor trustee.
(f) The Corporation shall give notice of each resignation and each removal of the Security Trustee
and each appointment of a successor trustee to the Holders by mailing such notice to such Holders at their addresses as they shall appear on the list of Holders maintained by the Corporation. If the Corporation shall fail to give such notice within
10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Corporation. Each notice shall include the name of the successor trustee and the address of its
Corporate Trust Office.
5.11 Acceptance of Appointment by Successor
Trustee
(a) In case of the appointment hereunder of a successor trustee, each successor
trustee so appointed shall execute, acknowledge and deliver to the Corporation, the Guarantor and to the retiring trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring trustee shall become
effective and such successor trustee, without any further act, deed or conveyance (but subject to Section 5.11(b)), shall become vested with all the rights, powers, trusts and duties of the retiring trustee. On the request of the Corporation, the
Guarantor or the successor trustee, the retiring trustee shall, upon payment of its fees and expenses then unpaid, execute, acknowledge and deliver an instrument transferring to such successor trustee all such rights, powers and trusts of the
retiring trustee and shall duly assign, transfer and deliver to such successor trustee all property and money, if any, held by such retiring trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee, the Corporation, the Guarantor,
the retiring trustee and such successor trustee shall execute, acknowledge and deliver an indenture supplemental hereto in which each successor trustee shall accept such appointment and which shall (i) contain such provisions as shall be deemed
necessary or desirable to transfer and confirm to, and to vest in, such successor trustee all the rights, powers, trusts and duties of the retiring trustee to which the appointment of such successor trustee relates, (ii) add to or change any of the
provisions of this Guarantee to the extent necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture (except as specifically
provided for therein) shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such
trustee; and upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring trustee shall become effective to the extent provided therein, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring trustee with respect to the Guarantee to which the appointment of such successor trustee relates, and such retiring trustee shall duly assign, transfer
and deliver to each successor trustee all property and money held, if any, by such retiring trustee hereunder which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Corporation and the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all rights, power and trusts referred to in subsection (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
5.12 Merger, Consolidation, Amalgamation or Succession to Business
Any corporation into which the Security Trustee may be merged or with which it may be consolidated or amalgamated, or any corporation resulting from any merger, consolidation or amalgamation to
which the Security Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Security Trustee, shall be the successor of the Security Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the execution or filing of any paper or instrument or any further act on the part of any of the parties hereto.
5.13 Not Bound to Act
The
Security Trustee shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Security Trustee, in its sole judgment, determines that such act might cause it
to be in non-compliance with any applicable economic sanctions or anti-money laundering or anti-terrorist legislation, regulation or guideline. Further, should the Security Trustee, in its sole judgment, determine at any time that its acting under
this Guarantee has resulted in its being in non-compliance with any applicable economic sanctions or anti-money laundering or anti-terrorist legislation, regulation or guideline, then it shall have the right to resign on 10 days written notice to
the Corporation and the Guarantor, provided that (a) the Security Trustee's written notice shall describe the circumstances of such non-compliance; and (b) if such circumstances are rectified to the Security Trustee's satisfaction, acting
reasonably, within such 10 day period, then such resignation shall not be effective.
5.14 Security Trustee's Privacy Clause
The parties acknowledge that federal and/or provincial legislation that addresses the protection of individuals' personal information (collectively, "Privacy Laws") applies to obligations and
activities under this Guarantee. Despite any other provision of this Guarantee, no party shall take or direct any action that would contravene, or cause the other to contravene, applicable Privacy Laws. The Guarantor shall, prior to transferring or
causing to be transferred personal information to the Security Trustee, obtain and retain required consents of the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined that such consents
either have previously been given upon which the parties can rely or are not required under the Privacy Laws. The Security Trustee shall use commercially reasonable efforts to ensure that its services hereunder comply with Privacy Laws.
Specifically, the Security Trustee agrees: (a) to have a designated chief privacy officer; (b) to maintain policies and procedures to protect personal information and to receive and respond to any privacy complaint or inquiry; (c) to use personal
information solely for the purposes of providing its services under or ancillary to this Guarantee and not to use it for any other purpose except with the consent of or direction from the Corporation and the Guarantor or the individual involved; (d)
not to sell or otherwise improperly disclose personal information to any third party; and (e) to employ administrative, physical and technological safeguards to reasonably secure and protect personal information against loss, theft, or unauthorized
access, use or modification.
5.15 Compensation and Reimbursement
The Corporation agrees:
(a) to pay to the
Security Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the Security Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the Security Trustee in accordance with any provision of this Guarantee (including the reasonable compensation and the expenses and disbursements of its agents and
counsel), except any tax in respect of which may be refunded or credited to it or any such expense, disbursement or advance as may be attributable to its negligence or bad faith.
The Security
Trustee's remuneration, shall be payable out of any funds coming into the possession of the Security Trustee in priority to any payment of the Senior Preferred Share Obligations. The said remuneration shall continue to be payable whether or not this
Guarantee shall be in the course of administration by or under the direction of a court of competent jurisdiction. Any amount due under this Section and unpaid within 30 days after demand for such payment by the Security Trustee, shall bear interest
at the then current rate of interest charged by the Security Trustee to its corporate customers. This Section 5.15 shall survive the removal or termination of the Security Trustee and the termination of this Guarantee.
5.16 Third Party Interests
Each party to this Agreement ("Representing Party") hereby represents to the Security Trustee that any account to be opened by, or interest to be held by, Security Trustee in connection with
this Agreement, for or to the credit of such Representing Party, either (a) is not intended to be used by or on behalf of any third party; or (b) is intended to be used by or on behalf of a third party, in which case such Representing Party hereby
agrees to complete, execute and deliver forthwith to Security Trustee a declaration, in Security Trustee's prescribed form or in such other form as may be satisfactory to it, as to the particulars of such third party.
ARTICLE 6
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND GUARANTORS
6.1 List of Holders
The Corporation shall furnish or cause to be furnished to the Security Trustee at such times
as the Security Trustee may request in writing, within five Business Days after the receipt by the Corporation of any such request, a list, in such form as the Security Trustee may reasonably require, of the names and addresses of the Holders as of
a date not more than 15 days prior to the time such list is furnished, in each case to the extent such information is in the possession or control of the Corporation and is not identical to a previously supplied list of Holders or has not otherwise
been received by the Security Trustee in its capacity as such. The Security Trustee may destroy any list of Holders previously given to it on receipt of a new list of Holders.
6.2 Access to list of Holders
A Holder may, upon payment to the Security Trustee of a reasonable fee, require the Security Trustee to furnish within 10 days after receiving the affidavit or statutory declaration referred to
below, a list setting out (a) the name and address of every Holder, (b) the aggregate number of Senior Preferred Shares owned by each such Holder, and (c) the aggregate number of the Senior Preferred Shares then outstanding, each as shown on the
list provided to the Security Trustee by the Corporation pursuant to Section 6.1 dated as of the day that the affidavit or statutory declaration is delivered to the Security Trustee. The affidavit or statutory declaration, as the case may be, shall
contain (i) the name and address of the Holder, (ii) where the applicant is a corporation, its name and address for service, (iii) a statement that the list will not be used except in connection with an effort to influence the voting of the Holders,
or any other matter relating to the Guarantee, and (iv) such other undertaking as may be required by applicable law. Where the Holder is a corporation, the affidavit or statutory declaration shall be made by a director or officer of the
corporation.
6.3 Communications to Holders
The rights of Holders to communicate with other Holders with respect to their rights under this Guarantee and the corresponding rights and privileges of the Security Trustee, shall be governed by
applicable law.
Every Holder, by receiving and holding Senior Preferred Shares, agrees with the Guarantor, the Corporation and the Security Trustee that none of the Guarantor, the Corporation
nor the Security Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the terms hereof or applicable law.
ARTICLE 7
CONVEYANCE OR TRANSFER
7.1 Conveyance or Transfer; Only on Certain Terms
The Guarantor shall not convey, distribute or transfer all or substantially all of its property to any Person or Persons unless:
(a) the Person or Persons that so acquire all or substantially all of the Guarantor's property
shall, unless such assumption occurs by operation of law, have expressly assumed the Senior Preferred Share Obligations pursuant an indenture supplemental hereto that is executed and delivered to the Security Trustee, in form satisfactory to the
Security Trustee, acting reasonably; and
(b) the Guarantor or any such Person shall have
delivered to the Security Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such conveyance, distribution or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
This Section shall only apply to conveyances, distributions and transfers by the Guarantor as transferor and shall not apply to
any conveyance, distribution or transfer by the Guarantor to any of (i) the Corporation, (ii) any Additional Guarantor, or (iii) any subsidiary entity of the Guarantor, the Corporation or any Additional Guarantor.
7.2 Successor Person Substituted
Upon any conveyance, distribution or transfer of all or substantially all of the properties, securities and assets of the Guarantor to any Person that has assumed the obligations of the Guarantor in
accordance with Section 7.1, the successor Person to which such conveyance, distribution or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Guarantee with the same effect
as if such successor Person had been named as the Guarantor herein, and in the event of any such conveyance, distribution or transfer, the Guarantor shall be discharged of all obligations and covenants under this Guarantee.
ARTICLE 8
SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without Consent of Holders
Without the consent of any Holders, the Guarantor, when authorized by or pursuant to a Board Resolution, the Corporation and the Security Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Security Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Guarantor and the assumption by any such successor of the covenants of the Guarantor contained herein or to add another
Person as a guarantor hereunder (with such Person thereafter becoming a Guarantor for purposes of this Guarantee); or
(b) to add to the covenants of the Guarantor or to surrender any right or power herein conferred upon the Guarantor, both of which in the opinion of the Security Trustee,
relying upon an Opinion of Counsel, is for the benefit of Holders or is not prejudicial to the rights of Holders in any material respect; or
(c) to add any additional Events of Default; or
(d) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to this Guarantee and to add to or change any of the provisions of
this Guarantee as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.11; or
(e) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Guarantee, which in the opinion of the Security Trustee, relying upon an Opinion of Counsel, shall not adversely
affect the interests of the Holders in any material respect; or
(f) to supplement any of the
provisions of this Guarantee to such extent as shall be necessary to permit or facilitate the termination of this Guarantee pursuant to Section 4.1; provided that in the opinion of the Security Trustee, relying upon an Opinion of Counsel, any such
action (other than any action permitted by Section 4.1) shall not adversely affect the interests of the Holders in any material respect.
8.2 Supplemental Indentures with Consent of Holders
With the consent of either (a) the Holders representing not less than a majority of the aggregate Liquidation Amount of all of the then outstanding Senior Preferred Shares, by Act of such Holders
delivered to the Guarantor and the Security Trustee, or (b) if a meeting of the Holders is called for obtaining such consent, Holders representing not less than a majority of the aggregate Liquidation Amount of all Senior Preferred Shares
represented at such meeting and voting in respect of such consent, the Guarantor, when authorized by or pursuant to a Board Resolution, and the Security Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Guarantee or of modifying in any manner the rights of the Holders under this Guarantee; provided, however, (i) that no such supplemental indenture shall have a
materially disproportionate adverse effect on any Series, without the consent of Holders representing not less than a majority of the aggregate Liquidation Amount of such Series, and (ii) that no such supplemental indenture shall, without the
consent of the Holders representing not less than 66⅔% of the aggregate Liquidation Amount of all of the then outstanding Senior Preferred Shares, by Act of such Holders delivered to the Guarantor and the Security Trustee, or, if a meeting of
the Holders is called for obtaining such consent, Holders representing not less than 66⅔% of the aggregate Liquidation Amount of all Senior Preferred Shares represented at such meeting and voting in respect of such consent, as the case may
be,
(a) reduce the percentage of the aggregate Liquidation Amount of the outstanding Senior
Preferred Shares required for any such supplemental indenture, for any waiver of compliance with certain provisions of this Guarantee or certain defaults applicable hereunder and their consequences provided for in this Guarantee, or reduce the
requirements of Section 11.4 for quorum or voting with respect to the Guarantee; or
(b) modify any of the provisions of this Section, except to increase any such percentage or to
provide that certain other provisions of this Guarantee cannot be modified or waived without the consent of the Holders.
8.3 Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Guarantee, the Security Trustee shall be entitled to receive, and shall be fully protected in acting and relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or permitted by this Guarantee. The Security Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Security Trustee's own
rights, duties or immunities under this Guarantee or otherwise.
8.4 Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article, this Guarantee shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Guarantee for
all purposes.
8.5 Notice of Supplemental Guarantees
Promptly after the execution by the Guarantor and the Security Trustee of any supplemental indenture pursuant to the provisions of Section 8.2, the Guarantor or the Corporation shall give notice
thereof to the Holders affected, in the manner provided for in Section 1.6, setting forth in general terms the substance of such supplemental indenture.
ARTICLE 9
COVENANTS
9.1 Existence
Subject to
Article 7, the Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its existence.
9.2 Security Trustee Not Required to Verify Liquidation Amount
The Guarantor will not require the Security Trustee
to calculate or verify the Liquidation Amount. When requested by the Security Trustee, the Guarantor shall deliver to the Security Trustee an Officer's Certificate specifying the Liquidation Amount.
ARTICLE
10
PURCHASE OF SENIOR PREFERRED SHARES
10.1 Purchase of
Senior Preferred Shares
Subject to applicable law, at any time when the Guarantor is not in default hereunder, the Guarantor may purchase Senior Preferred Shares at any price in the market
(including purchases from or through an investment dealer or a firm holding membership on a recognized stock exchange) or by tender to Holders or by private contract, in each case in accordance with the terms of the Senior Preferred Shares.
ARTICLE
11
MEETINGS OF HOLDERS
11.1 Purposes for Which Meetings May
Be Called
A meeting of the Holders of any one or more Series may be called at any time and from time to time pursuant to the provisions of this Article for one or more of the following
purposes:
(a) to give any notice to the Guarantor or to the Security Trustee, to give any
directions to the Security Trustee, or to take any other action authorized to be taken by the Holders pursuant to any of Sections 4.3 to 4.12;
(b) to remove the Security Trustee and appoint a successor Security Trustee with respect to the Guarantee pursuant to the provisions of Article 5;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 8.2; or
(d) to take any other action required or permitted to be
taken by or on behalf of the Holders of any specified percentage of the aggregate Liquidation Amount of any Series or of all of the then outstanding Senior Preferred Shares under any other provision of this Guarantee or under applicable law.
11.2 Call, Notice and Place of Meetings
(a) The Security Trustee or the Guarantor may at any time request that the Corporation call, and
upon receipt of such request the Corporation shall call or cause its transfer agent to call, a meeting of Holders of any one or more Series for any purpose specified in Section 11.1, to be held at such time and at such place in Toronto, Ontario, or
in such other place as the Security Trustee or the Guarantor shall determine. Notice of every meeting of Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided for in Section 1.6, not less than 21 nor more than 180 days prior to the date fixed for the meeting. In all cases, it is the Corporation who is to bear all costs associated with calling, giving notice of, and holding
the meeting.
(b) In case at any time the Security Trustee, the Guarantor, or the Holders
representing at least 10% of the aggregate Liquidation Amount of any one or more Series shall have requested the Security Trustee to request that the Corporation call a meeting of the Holders of a Series for any purpose specified in Section 11.1, by
written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Security Trustee shall not have so requested or if the Corporation shall not have mailed or caused to be mailed notice of such meeting within
21 days after receipt of such request and any required indemnification or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Security Trustee, the Guarantor or the Holders representing the aggregate Liquidation
Amount in the amount above specified, as the case may be, may determine the time and the place in Toronto, Ontario, or in such other place as the Security Trustee may approve for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in paragraph (a) of this Section.
11.3 Persons Entitled to Vote at Meetings
To be entitled to vote at any meeting of Holders, a Person shall be (a) a Holder of one or more outstanding Senior Preferred Shares, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their respective counsel, employees or any
representatives of the Security Trustee and its counsel, and any representatives of the Guarantor, the Corporation and their counsel.
11.4 Quorum; Action
The Holders representing not less than 25% of the aggregate Liquidation Amount of all of the
applicable Series shall constitute a quorum for a meeting of Holders. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section
11.2(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At the reconvening of any meeting adjourned
for lack of a quorum, the Holders entitled to vote at such meeting present in person or by proxy shall constitute a quorum for the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 8.2, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders representing not less than a majority of the aggregate Liquidation Amount of Senior Preferred Shares represented at such meeting in person or by proxy; provided, however, that any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other action which this Guarantee expressly provides may be made, given or taken by the Holders of a specified percentage which is more or less than a majority of the aggregate
Liquidation Amount of all of the then outstanding Senior Preferred Shares, the same may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of not less
than such specified percentage of the aggregate Liquidation Amount of all of the then outstanding Senior Preferred Shares present at such meeting.
Any resolution passed or decision taken at any
meeting of Holders duly held in accordance with this Section shall be binding on all the Holders, whether or not present or represented at the meeting.
11.5 Determination of Voting Rights; Conduct and Adjournment of Meetings
(a) Notwithstanding any provisions of this Guarantee, the Security Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Holders in regard to proof of the holding of Senior Preferred Shares and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Senior Preferred Shares shall be proved in the manner specified in Section 1.4 and the appointment of any proxy shall be proved in the manner specified in Section 1.4. Such regulations may provide that written instruments
appointing proxies may be presumed valid and genuine without the proof specified in Section 1.4 or other proof.
(b) The Corporation shall, by an instrument in writing, appoint a chairman and secretary of the meeting, unless the meeting shall have been called by the Guarantor or by
Holders as provided in Section 11.2(b), in which case the Guarantor or the Holders calling the meeting, as the case may be, shall in like manner appoint a chairman and secretary. A chairman and a secretary of a meeting called by Holders shall be
elected by vote of the Persons entitled to vote representing a majority of the aggregate Liquidation Amount of all of the then outstanding Senior Preferred Shares represented and voted at the meeting.
(c) Any meeting of Holders duly called pursuant to Section 11.2 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote representing a majority of the aggregate Liquidation Amount of all of the then outstanding Senior Preferred Shares represented and voted at the meeting; and the meeting may be held as so
adjourned without further notice.
11.6 Counting Votes and Recording Action of
Meetings
The vote upon any resolution submitted to any meeting of Holders shall be by written ballot(s) on which shall be subscribed the signatures of the Holders or of their representatives
by proxy and the number of outstanding Senior Preferred Shares held or represented by them. The chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 11.2 and, if applicable, Section 11.4. Each copy shall be signed and verified by the affidavits of the chairman and secretary of the meeting and one such copy shall be delivered
to each of the Guarantor, the Corporation and the Security Trustee to be preserved by the Security Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
11.7 Serial Approvals and Meetings
(a) If any business to be transacted at a meeting of Holders especially affects the rights of
the Holders of one or more Series in a manner or to an extent substantially differing from that in or to which it affects the rights of the Holders of any other Series (as to which an Opinion of Counsel will be binding on all Holders and the
Security Trustee for all purposes hereof) then:
(i) reference to such fact, indicating each
Series so especially affected, will be made in the notice of such meeting and the meeting will be and is herein called a "serial meeting"; and
(ii) the Holders of a Series so especially affected will not be bound by any action taken at a serial meeting unless in addition to compliance with the other provisions of this
Article 11 at such meeting:
(A) there are present
in person or by proxy, holders of at least 25% of the aggregate Liquidation Amount of the outstanding Senior Preferred Shares of such Series; and
(B) the resolution is passed by votes of more than 50% of the aggregate Liquidation Amount of the Senior Preferred Shares of such Series present in person or by proxy then
outstanding; provided, however, that a resolution to approve (i) a reduction of the percentage of the aggregate Liquidation Amount of such Series required for any supplemental indenture hereto, any waiver of compliance with this Guarantee or any
default hereunder in respect of such Series and its consequence provided for in this Guarantee, or to reduce the requirements of Section 11.4 for quorum or voting with respect to such Series and the Guarantee; or (ii) to modify any of the provisions
of this Section 11.7 with respect to such Series, except to increase any such percentage or to provide that certain other provisions of this Guarantee cannot be modified or waived without the consent of the Holders of such Series, requires the
approval of Holders of 66⅔% of the aggregate Liquidation Amount of such Series that are present in person or by proxy.
(b) If in the Opinion of Counsel any business to be transacted at any meeting of Holders does not affect the rights of the Holders of one or more Series, the provisions of
Section 8.2 and this Article 11 will apply with respect to such business as if the Senior Preferred Shares of such Series were not outstanding. Notwithstanding the foregoing, notice will be given to the Holders of such Series of such meeting
together with notice that such business does not affect the rights of such Holders.
This Guarantee may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same
Guarantee. This Guarantee may be executed and delivered by facsimile or other transmission of a counterpart hereof bearing a manual, facsimile or other electronic signature.
IN WITNESS WHEREOF
the parties hereto have duly executed and delivered this Guarantee as of the date first written above.
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BIPC HOLDINGS INC.
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Director
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BIP INVESTMENT CORPORATION
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By:
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/s/ David Krant
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Name: David Krant
Title: Senior Vice President
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COMPUTERSHARE TRUST COMPANY OF CANADA
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By:
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/s/ Yana Nedyalkova
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Name: Yana Nedyalkova
Title: Corporate Trust Officer
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By:
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/s/ Robert Morrison
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Name: Robert Morrison
Title: Corporate Trust
Officer
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[GUARANTEE INDENTURE FOR SENIOR PREFERRED SHARES]
THIS GUARANTEE INDENTURE dated as of March 30, 2020;
AMONG:
BROOKFIELD INFRASTRUCTURE PARTNERS
L.P., an exempted limited partnership formed under the laws of Bermuda,
(hereinafter referred to as the "Partnership"),
- and -
BIPC HOLDINGS INC., a corporation incorporated under the laws of the Province of Ontario,
(hereinafter referred to as the
"Guarantor"),
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company organized and existing under the laws of Canada,
(hereinafter referred to as the "Security Trustee").
WHEREAS pursuant to the terms of this guarantee indenture (the
"Guarantee") the Guarantor has agreed to guarantee in favour of the Holders (as defined below) the payment of the Class A Preferred LP Unit Obligations (as defined below), pursuant to the terms of the Guaranteed Class A Preferred LP Units (as
defined below);
AND WHEREAS all necessary acts and proceedings have been done and taken and all necessary resolutions have been passed to authorize the execution and delivery of this
Guarantee and to make the same legal, valid and binding upon the Guarantor;
AND WHEREAS the foregoing recitals are made as representations and statements of fact by the Guarantor and not
by the Security Trustee;
NOW THEREFORE THIS GUARANTEE WITNESSES that for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the
parties), the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 Definitions
For all purposes of this Guarantee, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) the words "herein",
"hereof" and "hereunder" and other words of similar import refer to this Guarantee as a whole and not to any particular Article, Section or other subdivision;
(c) all references to "the Guarantee" or "this Guarantee" are to this Guarantee as
modified, supplemented or amended from time to time;
(d) references to any statute, law,
regulation, ordinance, order, rule, manual, policy or directive will be deemed to include references to the same as amended, revised, re-enacted or consolidated from time to time and any successor thereto;
(e) references to any contract, agreement or other instrument, or any section of any contract,
agreement or other instrument will, unless specifically referred to, be deemed to include references to the same as varied, amended, supplemented, replaced or restated from time to time; and
(f) references to any Person will include references to any successors or assigns of such Person
or any Person that acquires all or substantially all of the assets of such Person.
In addition, the following terms shall have the following meanings:
"Act" has the
meaning given to such term in Section 1.4(a);
"Affiliate" means, with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by
such Person, or is under common Control of a third Person;
"Authorized Investments" has the meaning given to such term in Section 5.7;
"BIPIC" means BIP Investment
Corporation;
"BIPIC Preferred Share Guarantee Indenture" means any present or future guarantee or guarantee indenture entered into by the Guarantor with respect to any outstanding senior preferred shares
issued by BIPIC from time to time, pursuant to which the Guarantor guarantees any obligations with respect to such senior preferred shares of BIPIC;
"BIPIC Preferred Share Guarantee Obligations" means, with respect to the Guarantor, all indebtedness, liabilities and obligations of
the Guarantor under or pursuant to all BIPIC Preferred Share Guarantee Indentures to which the Guarantor is a party;
"Board Resolution" means, with respect to the Guarantor, a copy of a resolution duly
passed by the board of directors (or the equivalent) of the Governing Body of the Guarantor, to be in full force and effect on the applicable date, and delivered to the Security Trustee;
"Business Day"
means a day other than a Saturday, a Sunday or any other day that is a statutory or civic holiday in Toronto, Canada;
"Class A Preferred LP Units" means all of the class A preferred limited partnership
units of the Partnership that are issued from time to time pursuant to its limited partnership agreement;
"Class A Preferred LP Unit Obligations" means all financial liabilities and obligations of
the Partnership to the Holders in respect of the Guaranteed Class A Preferred LP Units including or in respect of (a) any accrued and unpaid distributions on the Guaranteed Class A Preferred LP Units, (b) the applicable redemption price and all
accrued and unpaid distributions up to, but excluding, the date fixed for redemption with respect to the Guaranteed Class A Preferred LP Units called for redemption, and (c) the Liquidation Amount payable on the Guaranteed Class A Preferred LP Units
upon a voluntary or involuntary dissolution, liquidation or winding up of the Partnership, without regard to the amount of assets of the Partnership available for distribution;
"Control" means the control
by one Person of another Person in accordance with the following: a Person ("A") controls another Person ("B") where A has the power to determine the management and policies of B by contract or status (for example the status of A being
the general partner of B) or by virtue of beneficial ownership of or control over a majority of the voting interests in B; and, for certainty and without limitation, if A owns or has control over shares to which are attached more than 50% of the
votes permitted to be cast in the election of directors to the board of directors (or the equivalent) of the Governing Body of B or A is the general partner of B, a limited partnership, then in each case A Controls B for this purpose, and the term
"Controlled" has the corresponding meaning;
"Corporate Trust Office" means the office of the Security Trustee, at which at any particular time its corporate trust business shall be principally
administered, which office on the date of execution of this Guarantee is located at 100 University Avenue, 11th Floor, Toronto ON M5J 2Y1;
"Defaulted Class A Preferred LP Units" has the meaning given to
such term in Section 4.6(b);
"Designation Notice" has the meaning given to such term in Section 2.3;
"Event of Default" has the meaning given to such term in
Section 4.2;
"Governing Body" means (a) with respect to a corporation or limited company, such corporation or limited company, (b) with respect to a limited liability company, a manager or managing partner
of such limited liability company, (c) with respect to a limited partnership, a general partner of such limited partnership (or if any such general partner is itself a partnership, such general partner's general partner), (d) with respect to a
general partnership, the managing partner (or if there is no managing partner, each partner), and (e) with respect to any other Person, the Person that has the power to determine the management and policies of such Person by status, and in the case
of each of (a) through (e) includes any Person to whom such Person has delegated any power or authority;
"Guaranteed Class A Preferred LP Units" means the Series 1, Series 2, Series 3, Series 4, Series 5, Series 6, Series 7, Series 8, Series 9, Series 10, Series 11
and Series 12 Class A Preferred LP Units and each Series of Class A Preferred LP Units that has been designated by the Partnership at any time pursuant to Section 2.3 as being entitled to the benefits of this Guarantee pursuant to the terms
hereof;
"Guarantor" means BIPC Holdings Inc.;
"Guarantor Order" or "Guarantor Request" means, with respect to the Guarantor, a written request or order
signed in the name of the Guarantor by any officer or director (or the equivalent) of the Governing Body of the Guarantor and delivered to the Security Trustee;
"Guarantor Preferred Securities" means,
collectively, all senior preferred shares of the Guarantor, whether existing on the date of this Guarantee or created and issued at any time and from time to time after the date hereof;
"Holders" means the
registered holders of any of the Guaranteed Class A Preferred LP Units from time to time, provided that, in determining whether the Holders of the requisite percentage of the aggregate Liquidation Amount of outstanding Guaranteed Class A Preferred
LP Units have given any request, notice, consent or waiver hereunder, "Holders" shall not include the Guarantor or any Affiliate of the Guarantor;
"Liquidation Amount" means, in respect of any
securities of any series or class and any determination date, the amount to which the holders of such series or class are entitled in the event of a distribution of the assets of the issuer of such series or class upon the liquidation, dissolution
or winding-up of such issuer on such date, plus, without duplication, an amount equal to all accrued and unpaid distributions up to, but excluding, such date;
"MI 61-101" means Multilateral Instrument
61-101 - Protection of Minority Security Holders in Special Transactions;
"OBCA" means the Business Corporations Act (Ontario);
"Officer's
Certificate" means, with respect to the Guarantor, a certificate signed by any officer or director (or the equivalent) of the Governing Body of the Guarantor and delivered to the Security Trustee;
"Opinion
of Counsel" means a written opinion of counsel, who may be counsel for the Guarantor, the Partnership or any of their Affiliates or employees, and who shall be acceptable to the Security Trustee;
"Pari
Passu Guarantor Obligations" means, collectively: (a) the BIPIC Preferred Share Guarantee Obligations, (b) all financial liabilities and obligations of the Guarantor to the holders of the Guarantor Preferred Securities, including in respect of
(i) any accrued and unpaid distributions on the Guarantor Preferred Securities, (ii) the applicable redemption price and all accrued and unpaid distributions up to, but excluding, the date fixed for redemption with respect to the Guarantor Preferred
Securities called for redemption, and (iii) the Liquidation Amount payable on the Guarantor Preferred Securities upon any voluntary or involuntary dissolution, liquidation or winding up of the Guarantor, without regard to the amount of assets of the
Guarantor available for distribution; and (c) all other financial liabilities and obligations of the Guarantor that rank pari passu with the financial liabilities and obligations described in clauses (a) and (b) of this definition;
"Partnership" means
Brookfield Infrastructure Partners L.P.;
"Person" means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof;
"Privacy Laws" has the meaning given to such term in Section 5.14;
"Representing Party" has the meaning given
to such term in Section 5.16;
"Security Trustee" means Computershare Trust Company of Canada;
"Senior Guarantor Obligations" shall mean:
(a) all indebtedness (including any indebtedness to trade creditors), liabilities and obligations
of the Guarantor, whether outstanding on the date of this Guarantee or hereafter created, incurred, assumed or guaranteed; and
(b) all renewals, extensions, restructurings, refinancings and refundings of any such indebtedness, liabilities or obligations,
except only
for (i) the Class A Preferred LP Unit Obligations, (ii) the Pari Passu Guarantor Obligations, and (iii) the Subordinate Guarantor Obligations;
"Series" means a series of Class A Preferred LP Units;
"Subordinate Guarantor Obligations" means, collectively, (a) all financial liabilities and obligations of the Guarantor to the holders of all securities in the capital of the Guarantor with entitlements to
Liquidation Amounts that are subordinate to the entitlements of the Guarantor Preferred Securities, and (b) all indebtedness, liabilities and obligations of the Guarantor that are expressly stated to be subordinate to the Senior Guarantor
Obligations, the Class A Preferred LP Unit Obligations and the Pari Passu Guarantor Obligations;
"subsidiary entity" shall have the meaning set out in MI 61-101; and
"wholly-owned subsidiary entity" shall have the meaning set out in MI 61-101.
1.2 Compliance
Certificates and Opinions
Upon any application or request by the Guarantor to the Security Trustee to take any action under any provision of this Guarantee, the Guarantor shall furnish to
the Security Trustee an Officer's Certificate stating that all conditions precedent, if any, provided for in this Guarantee (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been
complied with and, if required by the Security Trustee, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as
to which the furnishing of certain documents is specifically required by any provision of this Guarantee relating to such particular application or request, no additional certificate or opinion need be furnished.
In addition to the foregoing, every certificate or opinion with respect to compliance with a covenant or condition provided for in this Guarantee (other than as otherwise specified herein) shall
include:
(a) a statement that each individual signing such certificate or opinion has read and
understood such covenant or condition and the definitions herein relating thereto;
(b) a brief
statement as to the nature and scope of the examination or investigation and the assumption upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or she has made such examination
or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.
1.3 Form of Documents Delivered to Security Trustee
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Governing Body of the Guarantor may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters
upon which his or her certificate or opinion is based are erroneous. Any certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the
Governing Body of the Guarantor stating that the information with respect to such factual matters is in the possession of the Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Guarantee, they may, but need
not, be consolidated and form one instrument.
1.4 Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Guarantee to be given or taken by one or more Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed by them in writing. Except
as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Security Trustee and, where it is hereby expressly required, to the Guarantor and/or the Partnership. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any Person of a Guaranteed Class A Preferred LP Unit, shall be sufficient for any purpose of this Guarantee and conclusive in favour of the Security Trustee, the Guarantor
and the Partnership, if made in the manner provided in this Section.
(b) The fact and date of
the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than its individual capacity, such certificate or affidavit shall also constitute sufficient
proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Security Trustee deems sufficient.
(c) If the Guarantor shall solicit from Holders any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Guarantor may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Guarantor shall have no obligation to do so. Such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the
first solicitation of such Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may
be given before or after such record date, but only Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite percentage of outstanding Guaranteed
Class A Preferred LP Units or Series thereof have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Guaranteed Class A Preferred LP Units
or Series (as applicable) shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of
this Guarantee not later than eleven months after the record date.
1.5 Notices, Etc. to Security Trustee and Guarantor
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Guarantee to be made upon, given or furnished to, or filed
with:
(a) the Security Trustee by any Holder, the Guarantor or the Partnership shall be
sufficient for every purpose hereunder if in writing and delivered, mailed (first-class postage prepaid) or sent by facsimile to the Security Trustee at 100 University Avenue, 11th Floor, Toronto ON M5J 2Y1 Attention: Manager, Corporate
Trust, Facsimile No. 416-981-9777; or
(b) either of the Partnership or the Guarantor by any
Holder or the Security Trustee shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and delivered, mailed (first-class postage prepaid) or sent by facsimile to the Partnership or the Guarantor
addressed to it at 73 Front Street, 5th Floor, Hamilton HM 12, Bermuda or at any other address previously furnished in writing to the Security Trustee, Attention: Corporate Secretary, Facsimile No. 441-296-4475, with copy addressed to it at
Brookfield Place, 181 Bay Street, Suite 300, Toronto ON M5J 2T3, Attention: Secretary, Facsimile No. 416-369-2301.
Any delivery made or facsimile sent on a day other than a Business Day, or
after 3:00 p.m. (Toronto time) on a Business Day, shall be deemed to be received on the next following Business Day. Anything mailed shall not be deemed to have been given until it is actually received. The Guarantor or the Partnership may from time
to time notify the Security Trustee of a change in address or facsimile number which thereafter, until changed by like notice, shall be the address or facsimile number of the Guarantor or the Partnership for all purposes of this Guarantee.
1.6 Notice to Holders; Waiver
Where this Guarantee provides for notice of any event to Holders by the Guarantor or the Security Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder at the Holder's address as it appears in the list of Holders as provided by the Partnership, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice or in any other manner from time to time permitted by applicable laws, including, without limitation, internet-based or other electronic communications. In any case where notice to Holders is given by mail, neither the
accidental failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders, but upon such failure to mail or such defect in any notice so mailed
being discovered, the notice (as corrected to address any defects) shall be mailed forthwith to such Holder. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Guarantee shall be in the English language.
Where this Guarantee provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Security Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
1.7 Effect of Headings and Table of Contents
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
1.8 Successors and Assigns
All covenants and agreements in this Guarantee by the Guarantor shall bind its respective
successors and assigns, whether so expressed or not.
1.9 Severability Clause
In case any provision in this Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
1.10 Governing Law
This Guarantee shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
1.11 No Recourse Against Certain Persons
A director, officer, employee or securityholder, as such, of the Guarantor or the Governing Body of the Guarantor shall not have any liability for any obligations of the Guarantor under this
Guarantee or for any claim based on, in respect of or by reason of such obligations or its creation or any certificate, opinion, notice or other document delivered in connection with this Guarantee.
1.12 Multiple Originals
The
parties may sign any number of copies of this Guarantee. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Guarantee.
1.13 Language
Les parties
aux présentes ont exigé que la présente convention ainsi que tous les documents et avis qui s'y rattachent et/ou qui en decouleront soient rediges et exécutés en langue anglaise. The parties hereto have required that this
Guarantee and all documents and notices related thereto be drafted and executed in English.
1.14 Force Majeure
The
Security Trustee shall not be liable to any party to this Guarantee, or held in breach of this Guarantee by any party to this Guarantee, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason
of acts of God, riots, terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic or communication interruptions, disruptions or
failures). Performance times applicable to the Security Trustee's obligations under this Guarantee shall be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section.
ARTICLE 2
GUARANTEE
2.1 Guarantee
The Guarantor
irrevocably and unconditionally guarantees in favour of the Holders the due and punctual payment of the Class A Preferred LP Unit Obligations, regardless of any defense (except for the defense of the payment in full thereof), right of set-off or
counterclaim which the Guarantor may have or assert. If the Partnership shall fail to pay any of the Class A Preferred LP Unit Obligations when due, the Guarantor shall pay to the Holders entitled to receive such Class A Preferred LP Unit
Obligations immediately after demand made in writing by one or more such Holders or the Security Trustee, but in any event within 15 days of any failure by the Partnership to pay the Class A Preferred LP Unit Obligations when due, without any
evidence that the Holders or the Security Trustee has demanded that the Partnership pay such Class A Preferred LP Unit Obligations or that the Partnership has failed to do so. The Guarantor's obligation to pay Class A Preferred LP Unit Obligations
may be satisfied by (i) direct payment to the applicable Holders or (ii) payment to the applicable Holders through the facilities of the Security Trustee. The Guarantor shall give prompt written notice to the Security Trustee in the event it makes a
direct payment to the Holders hereunder.
2.2 Ranking of Guarantee
Notwithstanding anything to the contrary in this Guarantee, the obligations of the Guarantor hereunder are subordinate to all Senior Guarantor Obligations and rank pari passu with all Pari
Passu Guarantor Obligations on a pro rata basis.
2.3 Designation of
Guaranteed Class A Preferred LP Units
The Guarantor agrees that the Partnership has the right to, at any time and from time to time, designate any Class A Preferred LP Units as having the
benefit of this Guarantee and constituting Guaranteed Class A Preferred LP Units (with all financial liabilities and obligations thereunder constituting Class A Preferred LP Unit Obligations) for all purposes of this Guarantee. The Partnership shall
provide a written notice substantially in the form set forth on Exhibit A hereto to the Guarantor and the Security Trustee of any such designation for the purposes of the Guarantee (a "Designation Notice"). Upon receipt of a Designation
Notice, the Guarantor and Security Trustee shall each provide an acknowledgment to the Partnership confirming that the Class A Preferred LP Units identified in the Designation Notice constitute Guaranteed Class A Preferred LP Units from and after
the date of such Designation Notice and that the terms of this Guarantee extend to such Class A Preferred LP Units and all financial liabilities and obligations thereunder, in such form as the Partnership may reasonably require. The Security Trustee
is entitled to rely on a Designation Notice without independent enquiry as absolute evidence that this Guarantee applies to the Guaranteed Class A Preferred LP Units described in such Designation Notice.
2.4 Waiver of Notice
The
Guarantor hereby waives notice of acceptance of this Guarantee.
2.5 Guarantee
Absolute
The Guarantor guarantees that the Class A Preferred LP Unit Obligations will be paid strictly in accordance with the terms of the Guaranteed Class A Preferred LP Units and this
Guarantee within the time required by Section 2.1, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any such terms or the rights of the Holders with respect thereto. The liability of the Guarantor
under this Guarantee shall be absolute and unconditional irrespective of:
(a) any sale,
transfer or assignment by any Holder of any Guaranteed Class A Preferred LP Units or any right, title, benefit or interest of such Holder therein or thereto;
(b) any amendment or change in or to, or any waiver of, any of the terms of the Guaranteed Class A Preferred LP Units;
(c) any change in the name, objects, constitution, capacity, capital or the constating documents
of the Guarantor or the Partnership;
(d) any partial payment by the Partnership, or any
release or waiver, by operation of law or otherwise, of the performance or observance by the Partnership of any express or implied agreement, covenant, term or condition relating to the Guaranteed Class A Preferred LP Units to be performed or
observed by the Partnership;
(e) the extension of time for the payment by the Partnership of all or any portion of the Class A
Preferred LP Unit Obligations or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Guaranteed Class A Preferred LP Units;
(f) any failure, omission, delay or lack of diligence on the part of the Holders to enforce,
assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Guaranteed Class A Preferred LP Units, or any action on the part of the Partnership granting indulgence or extension of any kind;
(g) subject to Section 4.1(c), the recovery of any judgment against the Partnership, any voluntary
or involuntary liquidation, dissolution, winding up, merger or amalgamation of the Partnership or the Guarantor, any sale or other disposition of all or substantially all of the assets of the Partnership or the Guarantor, any judicial or
extrajudicial receivership, insolvency, bankruptcy, assignment for the benefit of, or proposal to, creditors, any reorganization, moratorium, arrangement or composition with creditors, or any readjustment of debt of, or other proceedings affecting
the Partnership, the Guarantor or any of the assets of the Partnership or the Guarantor;
(h) any circumstance, act or omission that would prevent subrogation operating in favour of the
Guarantor;
(i) any invalidity of, or defect or deficiency in, the Guaranteed Class A
Preferred LP Units or this Guarantee;
(j) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(k) any other circumstance, act or omission that
might otherwise constitute a defence available to, or a discharge of, the Partnership or the Guarantor in respect of any of the Class A Preferred LP Unit Obligations (other than, and to the extent of, the payment or satisfaction thereof),
it being the intent of the Guarantor that its obligations in respect of the Class A Preferred LP Unit Obligations shall be absolute and unconditional under all circumstances and shall not be discharged except by
payment in full of the Class A Preferred LP Unit Obligations. The Holders shall not be bound or obliged to exhaust their recourse against the Partnership or any other Persons or to take any other action before being entitled to demand payment from
the Guarantor hereunder.
There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing.
2.6 Continuing Guarantee
This
Guarantee shall apply to and secure any ultimate balance due or remaining due to the Holders in respect of the Class A Preferred LP Unit Obligations and shall be binding as an absolute and continuing obligation of the Guarantor. This Guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time payment of any of the Class A Preferred LP Unit Obligations must or may be rescinded, is declared or may become voidable, or must or may otherwise be returned by any
Holders for any reason, including the insolvency, bankruptcy, dissolution or reorganization of the Partnership or upon or as a result of the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to the
Partnership or any substantial part of its property, all as though such payment had not been made. If at any time the Partnership is precluded from making payment when due in respect of any Class A Preferred LP Unit Obligations by reason of the
provisions of its organizational documents or otherwise, such amounts shall nonetheless be deemed to be due and payable by the Partnership to the Holders for all purposes of this Guarantee and the Class A Preferred LP Unit Obligations shall be
immediately due and payable to the Holders. This is a guarantee of payment, and not merely a deficiency or collection guarantee.
2.7 Rights of Holders
The Guarantor expressly acknowledges that this Guarantee will be deposited with the Security
Trustee to be held for the benefit of the Holders and the Security Trustee has the right to enforce this Guarantee on behalf of the Holders.
2.8 Subrogation
The Guarantor shall have no right of subrogation in respect of any payment made to the Holders
hereunder until such time as the Class A Preferred LP Unit Obligations have been fully satisfied. In the case of the liquidation, dissolution, winding-up or bankruptcy of the Partnership (whether voluntary or involuntary), or if the Partnership
makes an arrangement or compromise or proposal with its creditors, the Holders shall have the right to rank for their full claim and to receive all distributions or other payments in respect thereof until their claims in respect of the Class A
Preferred LP Unit Obligations have been paid in full, and the Guarantor shall continue to be liable to the Holders for any balance which may be owing to the Holders by the Partnership in respect thereof. The Class A Preferred LP Unit Obligations
shall not, however, be released, discharged, limited or affected by the failure or omission of the Holders to prove the whole or part of any claim against the Partnership. If any amount is paid to the Guarantor on account of any subrogation arising
hereunder at any time when the Class A Preferred LP Unit Obligations are due and owing and have not been fully satisfied, such amount shall be held in trust by the Guarantor for the benefit of the Holders entitled thereto and shall forthwith be paid
to such Holders to be credited and applied against their Class A Preferred LP Unit Obligations.
2.9 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Partnership with respect to the Guaranteed Class A Preferred LP Units and that the Guarantor shall
be liable to make payment of the Class A Preferred LP Unit Obligations pursuant to the terms of this Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (k), inclusive, of Section 2.5 and regardless of
whether the Holders make a demand upon the Guarantor. The Guarantor will pay the Class A Preferred LP Unit Obligations in accordance with this Guarantee without regard to any equities between it and the Partnership or any defence or right of
set-off, compensation, abatement, combination of accounts or cross-claim that it or the Partnership may have.
2.10 Guarantor to Investigate Financial Condition of the Partnership
The Guarantor acknowledges that it has fully informed itself about the financial condition of the Partnership. The Guarantor assumes full responsibility for keeping fully informed of the financial
condition of the Partnership and all other circumstances affecting the Partnership's ability to pay the Class A Preferred LP Unit Obligations.
ARTICLE 3
SUBORDINATION OF OBLIGATIONS TO SENIOR
GUARANTOR OBLIGATIONS AND PARI PASSU RANKING WITH CERTAIN OTHER OBLIGATIONS
3.1 Applicability of Article
The obligations of the Guarantor hereunder shall be subordinate and subject in right of payment, to the extent and in the manner hereinafter set forth in the following sections of this Article 3, to
the prior payment in full of all Senior Guarantor Obligations, and are pari passu, on a pro rata basis, with all other Pari Passu Guarantor Obligations and the Security Trustee and each Holder, as a condition to and by acceptance of
the benefits conferred hereby, agrees to and shall be bound by the provisions of this Article 3.
3.2 Order of Payment
Upon any
distribution of the assets of the Guarantor on any dissolution, winding up, liquidation or reorganization of the Guarantor (whether in bankruptcy, insolvency or receivership proceedings, or upon an "assignment for the benefit of creditors" or any
other marshalling of the assets and liabilities of the Guarantor, or otherwise):
(a) all
Senior Guarantor Obligations shall first be paid in full, or provision made for such payment, before any payment is made on account of the Class A Preferred LP Unit Obligations;
(b) the claim of the Holders will rank pari passu with the claims of all holders of the
Pari Passu Guarantor Obligations and each such Person will be entitled to receive its pro rata share of the remaining assets of the Guarantor based on the amount of its Class A Preferred LP Unit Obligations or Pari Passu Guarantor
Obligations, as applicable; and
(c) any payment or distribution of assets of the Guarantor,
whether in cash, property or securities, to which the Holders or the Security Trustee on behalf of such Holders would be entitled except for the provisions of this Article 3, shall be paid or delivered by the trustee in bankruptcy, receiver,
assignee for the benefit of creditors, or other liquidating agent making such payment or distribution, directly to the holders of Senior Guarantor Obligations or Pari Passu Guarantor Obligations, as applicable, to the extent that they are entitled
thereto pursuant to this Article 3, or to their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Guarantor Obligations or Pari Passu Guarantor
Obligations may have been issued, to the extent necessary to pay all such Senior Guarantor Obligations or Pari Passu Guarantor Obligations.
3.3 Subrogation to Rights of Holders of Senior Guarantor Obligations
Subject to the payment in full of all Senior Guarantor Obligations, the Holders shall be subrogated to the rights of the holders of Senior Guarantor Obligations to receive payments or distributions
of assets of the Guarantor (to the extent of the application thereto of such payments or other assets which would have been received by the Holders but for the provisions hereof) until the Class A Preferred LP Unit Obligations shall be paid in full,
and no such payments or distributions to the Holders of cash, property or securities, which otherwise would be payable or distributable to the holders of such Senior Guarantor Obligations, shall, as between the Guarantor, its creditors (other than
the holders of Senior Guarantor Obligations and Pari Passu Guarantor Obligations), and the Holders, be deemed to be a payment by the Guarantor to the holders of such Senior Guarantor Obligations or on account of such Senior Guarantor Obligations, it
being understood that the provisions of this Article 3 are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Guarantor Obligations, on the other hand.
3.4 Obligation to Pay Not Impaired
Nothing contained in this Article 3 or elsewhere in this Guarantee is intended to or shall impair, as between the Guarantor, its creditors (other than the holders of Senior Guarantor Obligations),
and the Holders, the obligation of the Guarantor, which is absolute and unconditional, to pay to the Holders the Class A Preferred LP Unit Obligations in accordance herewith, as and when the same shall become due and payable in accordance with this
Guarantee, or affect the relative rights of the Holders and creditors of the Guarantor (other than the holders of the Senior Guarantor Obligations and Pari Passu Guarantor Obligations); nor shall anything herein or therein prevent the Security
Trustee or the Holder from exercising all remedies otherwise permitted by applicable law upon default under this Guarantee, subject to the rights, if any, under this Article 3 of the holders of Senior Guarantor Obligations or Pari Passu Guarantor
Obligations in respect of cash, property or securities of the Guarantor that are received upon the exercise of any such remedy.
3.5 No Payment if Senior Guarantor Obligations in Default
Upon the acceleration, demand or maturity of any Senior
Guarantor Obligations whether by lapse of time, acceleration, demand or otherwise, then, except as provided in Section 3.6, such matured Senior Guarantor Obligations shall first be paid in full, or shall first have been duly provided for, before any
payment by the Guarantor is made on account of the Class A Preferred LP Unit Obligations.
In case of default with respect to any Senior Guarantor Obligations that permits the holders thereof to accelerate the maturity thereof, unless and
until such default shall have been cured or waived or shall have ceased to exist, no payment (by purchase of the Guaranteed Class A Preferred LP Units or otherwise) shall be made by the Guarantor with respect to the Class A Preferred LP Unit
Obligations, and neither the Security Trustee nor the Holders shall be entitled to demand, institute proceedings for the collection of, or receive any payment or benefit from the Guarantor (including without limitation by set-off, combination of
accounts or otherwise in any manner whatsoever) on account of the Class A Preferred LP Unit Obligations after the happening of such a default (except as provided in Section 3.6), and unless and until such default shall have been cured or waived or
shall have ceased to exist, such payments received from the Guarantor shall be held in trust for the benefit of, and, if and when the Senior Guarantor Obligations shall have become due and payable, shall be paid over to, the holders of such Senior
Guarantor Obligations or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing an amount of such Senior Guarantor Obligations remaining unpaid, until all such Senior
Guarantor Obligations shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Guarantor Obligations.
The fact that any payment
hereunder is prohibited by this Section 3.5 shall not prevent the failure to make such payment from being an Event of Default hereunder.
3.6 Payment on Guaranteed Class A Preferred LP Units Permitted
Nothing contained in this Article 3 or elsewhere in
this Guarantee, or in any of the Guaranteed Class A Preferred LP Units, shall affect the obligation of the Guarantor to make, or prevent the Guarantor from making, at any time except during the pendency of any dissolution, winding up or liquidation
of the Guarantor or reorganization proceedings specified in Section 3.2 affecting the affairs of the Guarantor, any payment on account of the Class A Preferred LP Unit Obligations, except that the Guarantor shall not make any such payment other than
as contemplated by this Article 3, if it is in default in payment of any of its Senior Guarantor Obligations. The fact that any such payment is prohibited by this Section 3.6 shall not prevent the failure to make such payment from being an Event of
Default hereunder. Nothing contained in this Article 3 or elsewhere in this Guarantee, or in any of the Guaranteed Class A Preferred LP Units, shall prevent the application by the Security Trustee of any moneys deposited with the Security Trustee
hereunder for the purpose so deposited, to the payment of or on account of the Class A Preferred LP Unit Obligations unless and until the Security Trustee shall have received written notice from the Guarantor or from any holder of Senior Guarantor
Obligations or from the representative of any such holder of default with respect to any Senior Guarantor Obligations permitting the holders thereof to accelerate the maturity thereof and that all applicable notices have been issued and cure periods
have expired in respect of such default.
3.7 Confirmation of Subordination or Pari
Passu Ranking
As a condition to the benefits conferred hereby on each Holder, each such Holder by acceptance of the benefits conferred hereby authorizes and directs the Security Trustee, on
such Holder's behalf, to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article 3, and appoints the Security Trustee as such Holder's attorney-in-fact for any and all such purposes. Upon
request of the Guarantor, and upon being furnished with an Officer's Certificate stating that one or more named persons are holders of Senior Guarantor Obligations or Pari Passu Guarantor Obligations, or the representative or representatives of such
holders, or the trustee or trustees under which any instrument evidencing such Senior Guarantor Obligations or Pari Passu Guarantor Obligations may have been issued, and specifying the amount and nature of such Senior Guarantor Obligations or Pari
Passu Guarantor Obligations, as applicable, the Security Trustee shall enter into a written agreement or agreements with the Guarantor and the person or persons named in such Officer's Certificate providing that such person or persons are entitled
to all the rights and benefits of this Article 3 as the holder or holders, representative or representatives, or trustee or trustees of such Senior Guarantor Obligations or Pari Passu Guarantor Obligations, as applicable, specified in such Officer's
Certificate and in such agreement. Such agreement shall be conclusive evidence that the indebtedness specified therein is Senior Guarantor Obligations or Pari Passu Guarantor Obligations, as applicable, however, nothing herein shall impair the
rights of any holder of Senior Guarantor Obligations or Pari Passu Guarantor Obligations who has not entered into such an agreement.
3.8 Security
Trustee May Hold Senior Guarantor Obligations and Pari Passu Guarantor Obligations
The Security Trustee is entitled to all the rights set forth in this Article 3 with respect to any Senior
Guarantor Obligations or Pari Passu Guarantor Obligations at the time held by it, to the same extent as any other holder of Senior Guarantor Obligations or Pari Passu Guarantor Obligations, and nothing in this Guarantee deprives the Security Trustee
of any of its rights as such holder.
3.9 Rights of Holders of Senior Guarantor
Obligations and Pari Passu Guarantor Obligations Not Impaired
No right of any present or future holder of any Senior Guarantor Obligations or Pari Passu Guarantor Obligations to enforce the
subordination herein will at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or by any non-compliance by the Guarantor with the terms, provisions and covenants of this Guarantee, regardless
of any knowledge thereof which any such holder may have or be otherwise charged with.
3.10 Altering Senior Guarantor Obligations and Pari Passu Guarantor
Obligations
A holder of Senior Guarantor Obligations or Pari Passu Guarantor Obligations has the right to extend, renew, modify or amend the terms of such Senior Guarantor Obligations or
Pari Passu Guarantor Obligations, as applicable, or any security therefor and to release, sell or exchange such security and otherwise to deal freely with the Guarantor or any other Person, all without notice to or consent of the Holders or the
Security Trustee and without affecting the subordination herein, the liabilities and obligations of the parties to this Guarantee or the Holders or the Security Trustee.
3.11 Additional Indebtedness
This Guarantee does not restrict the Guarantor from incurring any indebtedness, liabilities or obligations or from encumbering, mortgaging, pledging or charging its properties to secure any
indebtedness, liabilities or obligations.
ARTICLE 4
TERMINATION AND REMEDIES
4.1 Termination of Guarantee
(a) This Guarantee shall terminate upon the satisfaction of the following:
(i) either
(A) all
of the outstanding Guaranteed Class A Preferred LP Units shall have been purchased and cancelled; and/or
(B) all of the Guaranteed Class A Preferred LP Units shall have been redeemed,
and, in each case, all amounts payable
on the Guaranteed Class A Preferred LP Units, including all accrued and unpaid distributions, shall have been paid in full; and
(ii) all other sums payable by the Partnership in respect of the Class A Preferred LP Unit Obligations have been paid.
The
Guarantor shall notify the Security Trustee in writing that the requirements set out in Sections 4.1(a)(i) and (ii) have been satisfied.
(b) This Guarantee shall terminate automatically upon the occurrence of any of the following events:
(i) the Guarantor becomes a wholly-owned subsidiary entity of a Person that has guaranteed the
Class A Preferred LP Unit Obligations on substantially the same terms as this Guarantee; or
(ii) the Guarantor becomes a wholly-owned subsidiary entity of the Partnership or Brookfield
Infrastructure L.P.
The Guarantor shall notify the Security Trustee in writing of the occurrence of either of the events under this Section 4.1(b) and the termination of this Guarantee as a
result thereof.
(c) All of the rights, obligations and liabilities of the Guarantor pursuant
to this Guarantee shall terminate upon the conveyance, distribution or transfer (including pursuant to a reorganization, consolidation, liquidation, dissolution, sale of any collateral, winding up, merger, amalgamation, arrangement or otherwise) of
all or substantially all of the Guarantor's properties, securities and assets to a Person that has assumed the obligations of the Guarantor pursuant to Article 7.
(d) Upon any termination of this Guarantee, the Security Trustee shall, upon request of the
Guarantor, provide to the Guarantor written documentation acknowledging the termination of this Guarantee. Notwithstanding the termination of this Guarantee, the obligations of the Guarantor to the Security Trustee under Section 5.3 shall
survive.
4.2 Suits for Enforcement by the Security Trustee
In the event that the Guarantor fails to pay any Class A Preferred LP Unit Obligations as required pursuant to the terms of this Guarantee (an "Event of Default"), the applicable Holders may,
subject to Section 4.6, institute judicial proceedings for the collection of the moneys so due and unpaid, may prosecute such proceedings to judgment or final decree and may enforce the same against the Partnership and/or the Guarantor and may
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Guarantor subject to the provisions of Article 3.
If an Event of Default occurs and
is continuing, the Security Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders, upon being indemnified and funded to its satisfaction by the Holders, by such appropriate judicial proceedings as the
Security Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Guarantee or in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
4.3 Security Trustee May File Proofs of Claim
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Guarantor or the property of the
Guarantor and while such proceeding is pending, the Security Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for any Class A Preferred LP Unit Obligation then due and payable and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Security Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Security Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding;
and
(b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same in accordance with this Guarantee,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Security Trustee.
Nothing herein contained shall be deemed to authorize the Security Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Guaranteed Class A Preferred LP Units or the rights of any Holder thereof or to authorize the Security Trustee to vote in respect of the claim of any Holder in any such proceeding.
4.4 Security Trustee May Enforce Claims Without Possession of Guaranteed Class A
Preferred LP Units
All rights of action and claims under this Guarantee may be prosecuted and enforced by the Security Trustee without the possession of any of the Guaranteed Class A
Preferred LP Units in any proceeding relating thereto, and any such proceeding instituted by the Security Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the Security Trustee, its agents and counsel, be for the rateable benefit of the Holders in respect of which such judgment has been recovered.
4.5 Application of Money Collected
Any money collected by the Security Trustee pursuant to this Article shall be applied in the following order:
FIRST, to the
payment of all amounts due to the Security Trustee including, without limitation, the reasonable compensation, expenses, disbursements and advances of the Security Trustee in or about the execution of its trust, or otherwise in relation hereto, with
interest thereon as herein provided;
SECOND, to the payment of all amounts due to Holders in respect of the costs, charges, expenses and advances incurred in connection with
enforcing their rights hereunder;
THIRD, to the payment of all Class A Preferred LP Unit Obligations then due and unpaid on a pro rata basis; and
FOURTH, the balance, if any, to the Person or Persons entitled thereto.
4.6 Limitation on Suits
No Holder shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Guarantee, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Security Trustee of a continuing Event of Default with respect to this Guarantee;
(b) the Holders representing not less than 25% of the aggregate Liquidation Amount of all of the
then outstanding Guaranteed Class A Preferred LP Units affected by such Event of Default ("Defaulted Class A Preferred LP Units") shall have made written request to the Security Trustee to institute proceedings in respect of such Event of
Default in its own name as Security Trustee hereunder;
(c) the Holders of the Defaulted Class A Preferred LP Units have provided to the Security Trustee
reasonable funding, if requested by the Security Trustee, and reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Security Trustee, for 15 days after its receipt of such notice, request and offer of
indemnity, has failed to institute any such proceeding; and
(e) no direction inconsistent with
such written request has been given to the Security Trustee during such 15-day period by the Holders representing a majority of the aggregate Liquidation Amount of the Defaulted Class A Preferred LP Units;
it
being understood and intended that no Holder shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Guarantee to affect, disturb or prejudice the rights of any other Holder, or to obtain or to seek to
obtain priority or preference over any other Holder or to enforce any right under this Guarantee, except in the manner herein provided and for the equal and rateable benefit of all Holders.
4.7 Restoration of Rights and Remedies
If the Security Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Guarantee and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Security Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Guarantor, the Security Trustee and the Holders shall be restored to their respective former
positions hereunder and thereafter all rights and remedies of the Security Trustee and the Holders shall continue as though no such proceeding had been instituted.
4.8 Rights and Remedies Cumulative
No right or remedy herein conferred upon or reserved to the Security Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
4.9 Delay or Omission Not Waiver
No delay or omission of the Security Trustee or of any Holder to exercise any right or remedy accruing upon an Event of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein, provided that any Event of Default that is cured by the Guarantor will thereafter cease to constitute an Event of Default for purposes of this Guarantee. Every right and remedy given by this Article
or by law to the Security Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Security Trustee or by the Holders, as the case may be.
4.10 Control by Holders
The
Holders representing not less than a majority of the aggregate Liquidation Amount of the Defaulted Class A Preferred LP Units shall have the right, after the occurrence and during the continuance of an Event of Default, to direct the time, method
and place of conducting any proceeding for any remedy available to the Security Trustee, or exercising any trust or power conferred on the Security Trustee, with respect to this Guarantee, provided that in each case:
(a) such direction shall not be in conflict with any rule of law or with this Guarantee;
(b) the Security Trustee may take any other action deemed proper by the Security Trustee which is
not inconsistent with such direction; and
(c) the Security Trustee need not take any action
which might involve it in personal liability or be unjustly prejudicial to the Holders not consenting to any such direction.
4.11 Waiver of Stay or Extension Laws
The Guarantor covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Guarantee; and the Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the
Security Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
4.12 Undertaking for Costs
All parties to this Guarantee agree, and each Holder by acceptance of the benefits
hereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Guarantee, or in any suit against the Security Trustee for any action taken, suffered or omitted
by it as Security Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable lawyers' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to (a) any suit instituted by the Guarantor, (b) any suit instituted by
the Security Trustee, or (c) any suit instituted in accordance with this Guarantee by any Holder for the enforcement of the payment of the Class A Preferred LP Unit Obligations.
ARTICLE 5
THE
SECURITY TRUSTEE
5.1 Certain Duties and Responsibilities
(a) The Security Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Guarantee, and no implied covenants or obligations shall be read into this Guarantee against the Security Trustee.
(b) The Security Trustee, in exercising its powers and discharging its duties prescribed or conferred by this Guarantee, shall
(i) act honestly and in good faith with a view to the best interests of the Holders, and
(ii) exercise that degree of care, diligence and skill a reasonably prudent trustee, appointed in
respect of a guarantee indenture would exercise in comparable circumstances.
(c) In the
absence of bad faith on its part, the Security Trustee, in the exercise of its rights and duties hereunder, may conclusively act and rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates,
opinions or other evidence furnished to the Security Trustee and conforming to the requirements of this Guarantee. The Security Trustee shall not be liable for or by reason of any statements of fact or recitals in this Guarantee or be required to
verify the same, but all such statements or recitals are and shall be deemed to be made by the Guarantor (or by its agents). The Security Trustee shall not in any way be responsible for the consequence of any breach on the part of the Guarantor (or
by its agents) of any of the Guarantor's covenants herein.
(d) No provision of this Guarantee
shall be construed to relieve the Security Trustee from the duties imposed on it in Section 5.1(b) or from liability for its own gross negligence or its own wilful misconduct, except that:
(i) this Section 5.1(d) shall not be construed to limit the effect of Section 5.1(a) and
(b);
(ii) the Security Trustee shall not be liable for any error of judgment made in good
faith by any of its officers, unless it shall be proved that the Security Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Security Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with an appropriate direction of the
Holders pursuant to Section 4.10 relating to the time, method and place of conducting any proceeding for any remedy available to the Security Trustee, or exercising any trust or power conferred upon the Security Trustee, under this Guarantee;
and
(iv) no provision of this Guarantee shall require the Security Trustee to expend or risk its
own funds or otherwise incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers except as herein expressly provided.
(e) Whether or not herein expressly so provided, every provision of this Guarantee relating to the
conduct or affecting the liability of or affording protection to the Security Trustee shall be subject to the provisions of this Section.
5.2 Certain Rights of Security Trustee
Subject to the provisions of Section 5.1:
(a) the Security Trustee may rely absolutely and shall be protected in acting or refraining from
acting upon any resolution, Officer's Certificate or other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, or other paper or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth or accuracy of any information therein contained;
(b) any order, request or direction of the Guarantor mentioned herein shall be sufficiently
evidenced by a Guarantor Request or Guarantor Order and any resolution shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Guarantee the Security Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Security Trustee (unless other evidence be herein specifically prescribed) may act and rely upon an Officer's Certificate (i) as evidence of the truth of any statements of fact, and (ii) to the effect that any particular
dealing or transaction or step or thing is, in the opinion of the officers so certifying, expedient, as evidence that it is expedient; provided that the Security Trustee may in its sole discretion, acting reasonably, require from the Guarantor or
otherwise further evidence or information before acting or relying on such certificate;
(d) the Security Trustee may employ or retain such agents, counsel and other assistants as it may
reasonably require for the proper determination and discharge of its duties hereunder and shall be entitled to receive reasonable remuneration for all services performed by it and compensation for all disbursements, costs and expenses made or
incurred by it in the discharge of its duties hereunder and shall not be responsible for any misconduct on the part of any of them, any such costs and expenses which shall immediately become and form part of the Security Trustee's fees
hereunder;
(e) the Security Trustee may, in relation to this Guarantee, act and rely on the
opinion or advice of or on information obtained from any counsel, notary, valuer, surveyor, engineer, broker, auctioneer, accountant or other expert, whether retained by the Security Trustee or by the Guarantor or otherwise;
(f) the Security Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in reliance thereon;
(g) the Security Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee at the request or direction of any of the Holders
pursuant to this Guarantee, unless such Holders shall have furnished to the Security Trustee reasonable funding and a reasonable indemnity, satisfactory to the Security Trustee, to protect and hold harmless the Security Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or direction and/or damage it may suffer by reason thereof as a condition to the commencement or continuation of such act, action or proceeding. The Security
Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding require the Holders at whose instance it is acting, to deposit with the Security Trustee the unit certificates held by them respecting the
Guaranteed Class A Preferred LP Units for which such unit certificates the Security Trustee shall issue receipts;
(h) the Security Trustee shall not be required to take notice of any default under this Guarantee, other than payment of any moneys required by any provision of this Guarantee to
be paid to it, unless and until notified in writing of such default, which notice shall clearly set out the nature of the default desired to be brought to the attention of the Security Trustee;
(i) prior to the occurrence of an Event of Default under this Guarantee and after the curing of
any such Event of Default which may have occurred, the Security Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, or other paper or document or any investigation of the books and records of the Guarantor (but the Security Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Security Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Guarantor, personally or by agent or attorney), unless requested to do so by the Act of the
Holders representing a majority of the aggregate Liquidation Amount of all of the then outstanding Defaulted Class A Preferred LP Units; provided, however, that the Security Trustee may require reasonable indemnity against the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation; and
(j) the
Security Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Security Trustee shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder. Any solicitors employed or consulted by the Security Trustee as counsel may, but need not be solicitors for the Guarantor.
5.3 Protection of Security Trustee
By way of supplement to the provisions of any law for the time being relating to trustees, it is expressly declared and agreed as follows:
(a) the recitals contained herein, shall be taken as the statements of the Guarantor, and the
Security Trustee shall not be liable for or assume any responsibility for their correctness;
(b) the Security Trustee makes no representations as to, and shall not be liable for, the validity
or sufficiency of this Guarantee;
(c) nothing herein contained shall impose any obligation on
the Security Trustee to see or to require evidence of registration or filing (or renewals thereof) of this Guarantee or any instrument ancillary or supplemental hereto;
(d) the Security Trustee shall not be bound to give any notice of the execution hereof;
(e) the Security Trustee shall not incur any liability or responsibility whatever or be in any way responsible for the consequence of any breach on the part of the Guarantor of
any of the covenants herein contained or of any act of the agents or servants of the Guarantor; and
(f) the Partnership shall indemnify the Security Trustee (including its directors, officers,
employees, representatives and agents) for, and hold it harmless against, any claim, demand, suit, loss, liability or expense (including any and all reasonable legal and adviser fees and disbursements) incurred without gross negligence or bad faith
on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. This indemnity will survive the termination or discharge of this Guarantee and the resignation or removal of the Security Trustee.
5.4 Security Trustee Not Required to Give Security
The Security Trustee shall not be required to give security for the execution of the trusts or its conduct or administration hereunder.
5.5 No Person Dealing with Security Trustee Need Enquire
No Person dealing with the Security Trustee shall be concerned to enquire whether the powers that the Security Trustee is purporting to exercise have become exercisable, or whether any money remains
due upon the Guaranteed Class A Preferred LP Units or to see to the application of any money paid to the Security Trustee.
5.6 May Hold
Guaranteed Class A Preferred LP Units
Subject to applicable law, the Security Trustee, in its individual or in any other capacity, may become the owner or pledgee of the Guaranteed Class A
Preferred LP Units and, subject to Section 5.8, may otherwise deal with the Guarantor with the same rights it would have if it were not the Security Trustee, and without being liable to account for any profit made thereby.
5.7 Moneys Held in Trust
Upon
receipt of a direction from the Guarantor, the Security Trustee shall invest funds held by the Security Trustee pursuant to this Guarantee in Authorized Investments in its name in accordance with such direction. Any direction from the Guarantor to
the Security Trustee shall be in writing and shall be provided to the Security Trustee no later than 9:00 a.m. ET on the day on which the investment is to be made. Any such direction received by the Security Trustee after 9:00 a.m. ET or received on
a non-Business Day, shall be deemed to have been given prior to 9:00 a.m. ET the next Business Day. Any direction from the Guarantor for the release of the funds must be received prior to 11:00 a.m. ET on the day on which the release of funds is to
be made. Any such direction for the release of funds received after 11:00 a.m. ET or on a non-Business Day, will be handled on a commercially reasonable efforts basis and may result in funds being released on the next Business Day. For the purposes
of this Section, "Authorized Investments" means short term interest bearing or discount debt obligations issued or guaranteed by the Government of Canada or a Province or a Canadian chartered bank (which may include an Affiliate or related
party of the Security Trustee) provided that such obligation is rated at least R1 (middle) by DBRS Limited or an equivalent rating service.
In the event that the Security Trustee does not
receive a direction or only a partial direction, the Security Trustee may hold cash balances constituting part or all of the funds received by it hereunder and may, but need not, invest same in its deposit department, the deposit department of one
of its Affiliates, or the deposit department of a Canadian chartered bank; but the Security Trustee, its Affiliates or a Canadian chartered bank shall not be liable to account for any profit to any parties to this Guarantee or to any other Person or
entity other than at a rate, if any, established from time to time by the Security Trustee, its Affiliates or a Canadian chartered bank. For the purpose of this Section, "Affiliate" means affiliated companies within the meaning of the OBCA, and
includes Computershare Investor Services Inc. and each of its affiliates within the meaning of the OBCA.
5.8 Conflict of Interest
(a) The Security Trustee represents to the Guarantor that at the time of the execution and
delivery hereof and to the best of the Security Trustee's knowledge and belief, no material conflict of interest exists in respect of the Security Trustee's role as a fiduciary hereunder and agrees that in the event of a material conflict of
interest arising hereafter it will, within 90 days after becoming aware that a material conflict of interest exists, either eliminate the same or resign its trust hereunder.
(b) If, notwithstanding Section 5.8(a), the Security Trustee has a material conflict of interest,
the validity and enforceability of this Guarantee shall not be affected in any manner whatsoever by reason only of the existence of such material conflict of interest.
(c) If the Security Trustee contravenes Section 5.8(a), the Holders representing not less than 25%
of the aggregate Liquidation Amount of all of the then outstanding Guaranteed Class A Preferred LP Units affected thereby may apply to the Ontario Superior Court of Justice for an order that the Security Trustee be replaced, and such court may make
an order on such terms as it thinks fit.
5.9 Corporate Trustee Required;
Eligibility
There shall at all times be a trustee hereunder which shall be a corporation resident or authorized to carry on the business of a trust company in Canada. Neither the Guarantor
nor any Affiliate of the Guarantor shall serve as trustee. If at any time the Security Trustee shall cease to be eligible in accordance with the provisions of this Section, the Security Trustee shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
5.10 Resignation and Removal;
Appointment of Successor
(a) Notwithstanding any other provisions hereof, no resignation
or removal of the Security Trustee and no appointment of a successor trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor trustee in accordance with the applicable requirements of Section
5.11.
(b) The Security Trustee may resign its trust and be discharged from all further duties
and liabilities hereunder at any time with respect to the Guarantee by giving to the Guarantor 60 days' notice in writing or such shorter notice as the Guarantor may accept as sufficient. If the instrument of acceptance by a successor trustee
required by Section 5.11 shall not have been delivered to the Security Trustee within 60 days after the giving of such notice of resignation, the resigning trustee may apply to the Ontario Superior Court of Justice for an order for the appointment
of a successor trustee with respect to the Guarantee.
(c) The Security Trustee may be removed
at any time by the Guarantor, except during an Event of Default.
(d) If any time:
(i) the Security Trustee shall fail to comply with Section 5.8(a); or
(ii) the Security Trustee shall cease to be eligible under Section 5.9 and shall fail to resign
after written request to do so by the Guarantor; or
(iii) the Security Trustee shall be
dissolved, shall become incapable of acting or shall become or be adjudged a bankrupt or insolvent or a receiver of the Security Trustee or of its property shall be appointed or any public officer shall take charge or control of the Security Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case the Guarantor by Board Resolution may remove the Security Trustee.
(e) If the Security Trustee shall resign, be removed or become incapable of acting or if a vacancy
shall occur in the office of the Security Trustee for any other reason, the Guarantor, by Board Resolution, shall promptly appoint a successor trustee or trustees and shall comply with the applicable requirements of Section 5.11. If, within one year
after such resignation, removal or incapability or the occurrence of such vacancy, a successor trustee has not been successfully appointed in accordance with the terms hereof, a successor trustee shall be appointed by Act of the Holders representing
a majority of the aggregate Liquidation Amount of all of the then outstanding Guaranteed Class A Preferred LP Units and the successor Security Trustee so appointed by the Holders shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 5.11, become the successor trustee. If no successor trustee shall have been so appointed by the Guarantor or the Holders and such appointment accepted in the manner required by Section 5.11, the Security
Trustee (at the Guarantor's expense) or any Holder who is a bona fide Holder may, on behalf of such Holder and all other Holders, apply to the Ontario Superior Court of Justice for any order for the appointment of a successor trustee.
(f) The Partnership shall give notice of each resignation and each removal of the Security Trustee
and each appointment of a successor trustee to the Holders by mailing such notice to such Holders at their addresses as they shall appear on the list of Holders maintained by the Partnership. If the Partnership shall fail to give such notice within
10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Partnership. Each notice shall include the name of the successor trustee and the address of its
Corporate Trust Office.
5.11 Acceptance of Appointment by Successor
Trustee
(a) In case of the appointment hereunder of a successor trustee, each successor
trustee so appointed shall execute, acknowledge and deliver to the Partnership, the Guarantor and to the retiring trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring trustee shall become
effective and such successor trustee, without any further act, deed or conveyance (but subject to Section 5.11(b)), shall become vested with all the rights, powers, trusts and duties of the retiring trustee. On the request of the Partnership, the
Guarantor or the successor trustee, the retiring trustee shall, upon payment of its fees and expenses then unpaid, execute, acknowledge and deliver an instrument transferring to such successor trustee all such rights, powers and trusts of the
retiring trustee and shall duly assign, transfer and deliver to such successor trustee all property and money, if any, held by such retiring trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee, the Partnership, the Guarantor, the retiring trustee and such successor trustee shall execute, acknowledge and
deliver an indenture supplemental hereto in which each successor trustee shall accept such appointment and which shall (i) contain such provisions as shall be deemed necessary or desirable to transfer and confirm to, and to vest in, such successor
trustee all the rights, powers, trusts and duties of the retiring trustee to which the appointment of such successor trustee relates, (ii) add to or change any of the provisions of this Guarantee to the extent necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture (except as specifically provided for therein) shall constitute such trustees co-trustees of the same trust
and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee; and upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring trustee shall become effective to the extent provided therein, and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of
the retiring trustee with respect to the Guarantee to which the appointment of such successor trustee relates, and such retiring trustee shall duly assign, transfer and deliver to each successor trustee all property and money held, if any, by such
retiring trustee hereunder which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee,
the Partnership and the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee all rights, power and trusts referred to in subsection (a) or (b) of this Section, as the case
may be.
(d) No successor trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified and eligible under this Article.
5.12 Merger, Consolidation, Amalgamation or Succession to Business
Any corporation into which the Security Trustee may be merged or with which it may be consolidated or amalgamated, or any corporation resulting from any merger, consolidation or amalgamation to
which the Security Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Security Trustee, shall be the successor of the Security Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the execution or filing of any paper or instrument or any further act on the part of any of the parties hereto.
5.13 Not Bound to Act
The
Security Trustee shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Security Trustee, in its sole judgment, determines that such act might cause it
to be in non-compliance with any applicable economic sanctions or anti-money laundering or anti-terrorist legislation, regulation or guideline. Further, should the Security Trustee, in its sole judgment, determine at any time that its acting under
this Guarantee has resulted in its being in non-compliance with any applicable economic sanctions or anti-money laundering or anti-terrorist legislation, regulation or guideline, then it shall have the right to resign on 10 days written notice to
the Partnership and the Guarantor, provided that (a) the Security Trustee's written notice shall describe the circumstances of such non-compliance; and (b) if such circumstances are rectified to the Security Trustee's satisfaction, acting
reasonably, within such 10 day period, then such resignation shall not be effective.
5.14 Security Trustee's Privacy
Clause
The parties acknowledge that federal and/or provincial legislation that addresses the protection of individuals' personal information (collectively, "Privacy Laws") applies to
obligations and activities under this Guarantee. Despite any other provision of this Guarantee, no party shall take or direct any action that would contravene, or cause the other to contravene, applicable Privacy Laws. The Guarantor shall, prior to
transferring or causing to be transferred personal information to the Security Trustee, obtain and retain required consents of the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined
that such consents either have previously been given upon which the parties can rely or are not required under the Privacy Laws. The Security Trustee shall use commercially reasonable efforts to ensure that its services hereunder comply with Privacy
Laws. Specifically, the Security Trustee agrees: (a) to have a designated chief privacy officer; (b) to maintain policies and procedures to protect personal information and to receive and respond to any privacy complaint or inquiry; (c) to use
personal information solely for the purposes of providing its services under or ancillary to this Guarantee and not to use it for any other purpose except with the consent of or direction from the Partnership and the Guarantor or the individual
involved; (d) not to sell or otherwise improperly disclose personal information to any third party; and (e) to employ administrative, physical and technological safeguards to reasonably secure and protect personal information against loss, theft, or
unauthorized access, use or modification.
5.15 Compensation and
Reimbursement
The Partnership agrees:
(a) to pay to the Security Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the Security Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by
the Security Trustee in accordance with any provision of this Guarantee (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any tax in respect of which may be refunded or credited to it or any
such expense, disbursement or advance as may be attributable to its negligence or bad faith.
The Security Trustee's remuneration, shall be payable out of any funds coming into the possession of
the Security Trustee in priority to any payment of the Class A Preferred LP Unit Obligations. The said remuneration shall continue to be payable whether or not this Guarantee shall be in the course of administration by or under the direction of a
court of competent jurisdiction. Any amount due under this Section and unpaid within 30 days after demand for such payment by the Security Trustee, shall bear interest at the then current rate of interest charged by the Security Trustee to its
corporate customers. This Section 5.15 shall survive the removal or termination of the Security Trustee and the termination of this Guarantee.
5.16 Third Party Interests
Each party to this Agreement ("Representing Party") hereby represents to the Security Trustee that any account to be opened by, or interest to be held by, Security Trustee in connection with
this Agreement, for or to the credit of such Representing Party, either (a) is not intended to be used by or on behalf of any third party; or (b) is intended to be used by or on behalf of a third party, in which case such Representing Party hereby
agrees to complete, execute and deliver forthwith to Security Trustee a declaration, in Security Trustee's prescribed form or in such other form as may be satisfactory to it, as to the particulars of such third party.
ARTICLE 6
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND GUARANTORS
6.1 List of Holders
The Partnership shall furnish or cause to be furnished to the Security Trustee at such times as
the Security Trustee may request in writing, within five Business Days after the receipt by the Partnership of any such request, a list, in such form as the Security Trustee may reasonably require, of the names and addresses of the Holders as of a
date not more than 15 days prior to the time such list is furnished, in each case to the extent such information is in the possession or control of the Partnership and is not identical to a previously supplied list of Holders or has not otherwise
been received by the Security Trustee in its capacity as such. The Security Trustee may destroy any list of Holders previously given to it on receipt of a new list of Holders.
6.2 Access to list of Holders
A Holder may, upon payment to the Security Trustee of a reasonable fee, require the Security Trustee to furnish within 10 days after receiving the affidavit or statutory declaration referred to
below, a list setting out (a) the name and address of every Holder, (b) the aggregate number of Guaranteed Class A Preferred LP Units owned by each such Holder, and (c) the aggregate number of the Guaranteed Class A Preferred LP Units then
outstanding, each as shown on the list provided to the Security Trustee by the Partnership pursuant to Section 6.1 dated as of the day that the affidavit or statutory declaration is delivered to the Security Trustee. The affidavit or statutory
declaration, as the case may be, shall contain (i) the name and address of the Holder, (ii) where the applicant is a corporation, its name and address for service, (iii) a statement that the list will not be used except in connection with an effort
to influence the voting of the Holders, or any other matter relating to the Guarantee, and (iv) such other undertaking as may be required by applicable law. Where the Holder is a corporation, the affidavit or statutory declaration shall be made by a
director or officer of the corporation.
6.3 Communications to Holders
The rights of Holders to communicate with other Holders with respect to their rights under this Guarantee and the corresponding rights and privileges of the Security Trustee, shall be governed by
applicable law.
Every Holder, by receiving and holding Guaranteed Class A Preferred LP Units, agrees with the Guarantor, the Partnership and the Security Trustee that none of the Guarantor, the
Partnership nor the Security Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the terms hereof or applicable law.
ARTICLE 7
CONVEYANCE OR TRANSFER
7.1 Conveyance or Transfer; Only on Certain Terms
The Guarantor shall not convey, distribute or transfer all or substantially all of its property to any Person or Persons unless:
(a) the Person or Persons that so acquire all or substantially all of the Guarantor's property
shall, unless such assumption occurs by operation of law, have expressly assumed the Class A Preferred LP Unit Obligations pursuant an indenture supplemental hereto that is executed and delivered to the Security Trustee, in form satisfactory to the
Security Trustee, acting reasonably; and
(b) the Guarantor or any such Person shall have
delivered to the Security Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such conveyance, distribution or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
This Section shall only apply to conveyances, distributions and transfers by the Guarantor as transferor and shall not apply to
any conveyance, distribution or transfer by the Guarantor to any of (i) the Partnership, (ii) any Person that is a guarantor of the Class A Preferred LP Unit Obligations, or (iii) any subsidiary entity of the Guarantor, the Partnership or any Person
that has guaranteed the Class A Preferred LP Unit Obligations.
7.2 Successor Person
Substituted
Upon any conveyance, distribution or transfer of all or substantially all of the properties, securities and assets of the Guarantor to any Person that has assumed the obligations
of the Guarantor in accordance with Section 7.1, the successor Person to which such conveyance, distribution or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Guarantee
with the same effect as if such successor Person had been named as the Guarantor herein, and in the event of any such conveyance, distribution or transfer, the Guarantor shall be discharged of all obligations and covenants under this Guarantee.
ARTICLE
8
SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without
Consent of Holders
Without the consent of any Holders, the Guarantor, when authorized by or pursuant to a Board Resolution, the Partnership and the Security Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Security Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Guarantor and the assumption by any such successor of the covenants of the Guarantor contained herein or to add another
Person as a guarantor hereunder (with such Person thereafter becoming a Guarantor for purposes of this Guarantee); or
(b) to add to the covenants of the Guarantor or to surrender any right or power herein conferred upon the Guarantor, both of which in the opinion of the Security Trustee, relying
upon an Opinion of Counsel, is for the benefit of Holders or is not prejudicial to the rights of Holders in any material respect; or
(c) to add any additional Events of Default; or
(d) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to this Guarantee and to add to or change any of the provisions of
this Guarantee as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.11; or
(e) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Guarantee, which in the opinion of the Security Trustee, relying upon an Opinion of Counsel, shall not adversely affect the
interests of the Holders in any material respect; or
(f) to supplement any of the provisions
of this Guarantee to such extent as shall be necessary to permit or facilitate the termination of this Guarantee pursuant to Section 4.1; provided that in the opinion of the Security Trustee, relying upon an Opinion of Counsel, any such action
(other than any action permitted by Section 4.1) shall not adversely affect the interests of the Holders in any material respect.
8.2 Supplemental Indentures with Consent of Holders
With the consent of either (a) the Holders representing not less
than a majority of the aggregate Liquidation Amount of all of the then outstanding Guaranteed Class A Preferred LP Units, by Act of such Holders delivered to the Guarantor and the Security Trustee, or (b) if a meeting of the Holders is called for
obtaining such consent, Holders representing not less than a majority of the aggregate Liquidation Amount of all Guaranteed Class A Preferred LP Units represented at such meeting and voting in respect of such consent, the Guarantor, when authorized
by or pursuant to a Board Resolution, and the Security Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Guarantee
or of modifying in any manner the rights of the Holders under this Guarantee; provided, however, (i) that no such supplemental indenture shall have a materially disproportionate adverse effect on any Series, without the consent of Holders
representing not less than a majority of the aggregate Liquidation Amount of such Series, and (ii) that no such supplemental indenture shall, without the consent of the Holders representing not less than 66⅔% of the aggregate Liquidation
Amount of all of the then outstanding Guaranteed Class A Preferred LP Units, by Act of such Holders delivered to the Guarantor and the Security Trustee, or, if a meeting of the Holders is called for obtaining such consent, Holders representing not
less than 66⅔% of the aggregate Liquidation Amount of all Guaranteed Class A Preferred LP Units represented at such meeting and voting in respect of such consent, as the case may be,
(a) reduce the percentage of the aggregate Liquidation Amount of the outstanding Guaranteed Class
A Preferred LP Units required for any such supplemental indenture, for any waiver of compliance with certain provisions of this Guarantee or certain defaults applicable hereunder and their consequences provided for in this Guarantee, or reduce the
requirements of Section 11.4 for quorum or voting with respect to the Guarantee; or
(b) modify
any of the provisions of this Section, except to increase any such percentage or to provide that certain other provisions of this Guarantee cannot be modified or waived without the consent of the Holders.
8.3 Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Guarantee, the Security
Trustee shall be entitled to receive, and shall be fully protected in acting and relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Guarantee. The Security Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which affects the Security Trustee's own rights, duties or immunities under this Guarantee or otherwise.
8.4 Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article, this Guarantee shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Guarantee for
all purposes.
8.5 Notice of Supplemental Guarantees
Promptly after the execution by the Guarantor and the Security Trustee of any supplemental indenture pursuant to the provisions of Section 8.2, the Guarantor or the Partnership shall give notice
thereof to the Holders affected, in the manner provided for in Section 1.6, setting forth in general terms the substance of such supplemental indenture.
ARTICLE 9
COVENANTS
9.1 Existence
Subject to Article 7, the Guarantor will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence.
9.2 Security Trustee Not Required to
Verify Liquidation Amount
The Guarantor will not require the Security Trustee to calculate or verify the Liquidation Amount. When requested by the Security Trustee, the Guarantor shall
deliver to the Security Trustee an Officer's Certificate specifying the Liquidation Amount.
ARTICLE 10
PURCHASE OF GUARANTEED CLASS A PREFERRED LP UNITS
10.1 Purchase of Guaranteed Class A Preferred LP Units
Subject to applicable law, at any time when the Guarantor is not in default hereunder, the Guarantor may purchase Guaranteed Class A Preferred LP Units at any price in the market (including
purchases from or through an investment dealer or a firm holding membership on a recognized stock exchange) or by tender to Holders or by private contract, in each case in accordance with the terms of the Guaranteed Class A Preferred LP Units.
ARTICLE 11
MEETINGS OF HOLDERS
11.1 Purposes for Which Meetings May Be Called
A meeting of the Holders of any one or more Series may be called at any time and from time to time pursuant to the provisions of this Article for one or more of the following purposes:
(a) to give any notice to the Guarantor or to the Security Trustee, to give any directions to the
Security Trustee, or to take any other action authorized to be taken by the Holders pursuant to any of Sections 4.3 to 4.12;
(b) to remove the Security Trustee and appoint a successor Security Trustee with respect to the Guarantee pursuant to the provisions of Article 5;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the
provisions of Section 8.2; or
(d) to take any other action required or permitted to be taken
by or on behalf of the Holders of any specified percentage of the aggregate Liquidation Amount of any Series or of all of the then outstanding Guaranteed Class A Preferred LP Units under any other provision of this Guarantee or under applicable
law.
11.2 Call, Notice and Place of Meetings
(a) The Security Trustee or the Guarantor may at any time request that the Partnership call, and
upon receipt of such request the Partnership shall call or cause its transfer agent to call, a meeting of Holders of any one or more Series for any purpose specified in Section 11.1, to be held at such time and at such place in Toronto, Ontario, or
in such other place as the Security Trustee or the Guarantor shall determine. Notice of every meeting of Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided for in Section 1.6, not less than 21 nor more than 180 days prior to the date fixed for the meeting. In all cases, it is the Partnership who is to bear all costs associated with calling, giving notice of, and holding
the meeting.
(b) In case at any time the Security Trustee, the Guarantor or the Holders
representing at least 10% of the aggregate Liquidation Amount of any one or more Series shall have requested the Security Trustee to request that the Partnership call a meeting of the Holders of a Series for any purpose specified in Section 11.1, by
written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Security Trustee shall not have so requested or if the Partnership shall not have mailed or caused to be mailed notice of such meeting within
21 days after receipt of such request and any required indemnification or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Security Trustee, the Guarantor or the Holders representing the aggregate Liquidation
Amount in the amount above specified, as the case may be, may determine the time and the place in Toronto, Ontario, or in such other place as the Security Trustee may approve for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in paragraph (a) of this Section.
11.3 Persons Entitled
to Vote at Meetings
To be entitled to vote at any meeting of Holders, a Person shall be (a) a Holder of one or more outstanding Guaranteed Class A Preferred LP Units, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and
their respective counsel, employees or any representatives of the Security Trustee and its counsel, and any representatives of the Guarantor, the Partnership and their counsel.
11.4 Quorum; Action
The
Holders representing not less than 25% of the aggregate Liquidation Amount of all of the applicable Series shall constitute a quorum for a meeting of Holders of such Series. In the absence of a quorum within 30 minutes of the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such
meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 11.2(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be
reconvened.
At the reconvening of any meeting adjourned for lack of a quorum, the Holders entitled to vote at such meeting present in person or by proxy shall constitute a quorum for the taking of any action
set forth in the notice of the original meeting.
Except as limited by the proviso to Section 8.2, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders representing not less than a majority of the aggregate Liquidation Amount of Guaranteed Class A Preferred LP Units represented at such meeting in person or by proxy;
provided, however, that any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Guarantee expressly provides may be made, given or taken by the Holders of a specified
percentage which is more or less than a majority of the aggregate Liquidation Amount of all of the then outstanding Guaranteed Class A Preferred LP Units, the same may be adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of not less than such specified percentage of the aggregate Liquidation Amount of all of the then outstanding Guaranteed Class A Preferred LP Units present at such meeting.
Any resolution passed or decision taken at any meeting of Holders duly held in accordance with this Section shall be binding on all the Holders, whether or not present or represented at the
meeting.
11.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings
(a) Notwithstanding any provisions of this Guarantee, the Security Trustee may
make such reasonable regulations as it may deem advisable for any meeting of Holders in regard to proof of the holding of Guaranteed Class A Preferred LP Units and of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Guaranteed Class A Preferred LP Units shall be proved in the manner specified in Section 1.4 and the appointment of any proxy shall be proved in the manner specified in Section 1.4. Such regulations
may provide that written instruments appointing proxies may be presumed valid and genuine without the proof specified in Section 1.4 or other proof.
(b) The Partnership shall, by an instrument in writing, appoint a chairman and secretary of the meeting, unless the meeting shall have been called by the Guarantor or by Holders
as provided in Section 11.2(b), in which case the Guarantor or the Holders calling the meeting, as the case may be, shall in like manner appoint a chairman and secretary. A chairman and a secretary of a meeting called by Holders shall be elected by
vote of the Persons entitled to vote representing a majority of the aggregate Liquidation Amount of all of the then outstanding Guaranteed Class A Preferred LP Units represented and voted at the meeting.
(c) Any meeting of Holders duly called pursuant to Section 11.2 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote representing a majority of the aggregate Liquidation Amount of all of the then outstanding Guaranteed Class A Preferred LP Units represented and voted at the meeting; and the meeting may be
held as so adjourned without further notice.
11.6 Counting Votes and Recording
Action of Meetings
The vote upon any resolution submitted to any meeting of Holders shall be by written ballot(s) on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the number of outstanding Guaranteed Class A Preferred LP Units held or represented by them. The chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth
a copy of the notice of the meeting and showing that said notice was given as provided in Section 11.2 and, if applicable, Section 11.4. Each copy shall be signed and verified by the affidavits of the chairman and secretary of the meeting and one
such copy shall be delivered to each of the Guarantor, the Partnership and the Security Trustee to be preserved by the Security Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
11.7 Serial Approvals and
Meetings
(a) If any business to be transacted at a meeting of Holders especially affects
the rights of the Holders of one or more Series in a manner or to an extent substantially differing from that in or to which it affects the rights of the Holders of any other Series (as to which an Opinion of Counsel will be binding on all Holders
and the Security Trustee for all purposes hereof) then:
(i) reference to such fact,
indicating each Series so especially affected, will be made in the notice of such meeting and the meeting will be and is herein called a "serial meeting"; and
(ii) the Holders of a Series so especially affected will not be bound by any action taken at a serial meeting unless in addition to compliance with the other provisions of this
Article 11 at such meeting:
(A) there are present in person or by proxy, holders of at
least 25% of the aggregate Liquidation Amount of the outstanding Guaranteed Class A Preferred LP Units of such Series; and
(B) the resolution is passed by votes of more than 50% of the aggregate Liquidation Amount of the Guaranteed Class A Preferred LP Units of such Series present in person or by
proxy then outstanding; provided, however, that a resolution to approve (i) a reduction of the percentage of the aggregate Liquidation Amount of such Series required for any supplemental indenture hereto, any waiver of compliance with this Guarantee
or any default hereunder in respect of such Series and its consequence provided for in this Guarantee, or to reduce the requirements of Section 11.4 for quorum or voting with respect to such Series and the Guarantee; or (ii) to modify any of the
provisions of this Section 11.7 with respect to such Series, except to increase any such percentage or to provide that certain other provisions of this Guarantee cannot be modified or waived without the consent of the Holders of such Series,
requires the approval of Holders of 66⅔% of the aggregate Liquidation Amount of such Series that are present in person or by proxy.
(b) If in the Opinion of Counsel any business to be transacted at any meeting of Holders does not
affect the rights of the Holders of one or more Series, the provisions of Section 8.2 and this Article 11 will apply with respect to such business as if the Guaranteed Class A Preferred LP Units of such Series were not outstanding. Notwithstanding
the foregoing, notice will be given to the Holders of such Series of such meeting together with notice that such business does not affect the rights of such Holders.
[Remainder of Page Intentionally Left
Blank]
This Guarantee may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Guarantee. This Guarantee may be executed and delivered by facsimile or other transmission of a counterpart hereof bearing
a manual, facsimile or other electronic signature.
IN WITNESS WHEREOF the parties hereto have duly executed and delivered this Guarantee as of the date first written above.
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BROOKFIELD INFRASTRUCTURE PARTNERS L.P. by its general partner,
BROOKFIELD
INFRASTRUCTURE PARTNERS LIMITED
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By:
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/s/ Jane Sheere
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Name: Jane Sheere
Title:Secretary
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BIPC HOLDINGS INC.
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Director
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COMPUTERSHARE TRUST COMPANY OF CANADA
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By:
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/s/ Yana Nedyalkova
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Name: Yana Nedyalkova
Title: Corporate Trust Officer
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By:
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/s/ Robert Morrison
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Name: Robert Morrison
Title: Corporate Trust Officer
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[GUARANTEE INDENTURE FOR CLASS A PREFERRED LP
UNITS]
EXHIBIT A
FORM OF DESIGNATION NOTICE
To: Computershare Trust Company of Canada (the "Trustee") and Brookfield Infrastructure
Corporation (the "Company")
This notice is given pursuant to Section 2.3 of the guarantee indenture among Brookfield Infrastructure Partners L.P. (the "Partnership"), BIPC Holdings Inc. and the
Trustee dated as of March 30, 2020 (the "Guarantee"). All capitalized words and expressions used in this notice that are not defined herein have the meanings ascribed to such words and expressions in the Guarantee.
The Partnership hereby notifies the undersigned that the Partnership desires to designate [description of designated Class A Preferred LP Units] (the "Designated Units") as being entitled to the benefits
of the Guarantee pursuant to the terms thereof and constituting Guaranteed Class A Preferred LP Units (with all financial liabilities and obligations thereunder constituting Class A Preferred LP Unit Obligations).
The undersigned hereby acknowledges that the Designated Units constitute Guaranteed Class A Preferred LP Units from and after the date hereof and that the terms of the Guarantee extend to such Series of Class A
Preferred LP Units.
DATED: _________________________________
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BROOKFIELD INFRASTRUCTURE PARTNERS L.P. by its general partner,
BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED
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By:
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Name:
Title:
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Agreed and acknowledged:
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COMPUTERSHARE TRUST COMPANY OF CANADA
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By:
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Name:
Title:
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BROOKFIELD INFRASTRUCTURE CORPORATION
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By:
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Name:
Title:
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SUBORDINATE CREDIT AGREEMENT
between
BUUK BERMUDA HOLDCO LIMITED
as Borrower
and
BIP BERMUDA HOLDINGS I LIMITED
as Lender
Effective as of March 31, 2020
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS
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1
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1.1 Defined Terms
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1
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1.2 Terms Generally
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9
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1.3 Accounting Terms; GAAP
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9
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1.4 Time
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9
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1.5 Borrowers Jointly and Severally Liable
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9
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1.6 Borrowers Bound by Delivered Certificates and Notices
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10
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1.7 Currency Equivalents
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10
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1.8 Amount of Credit
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10
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1.9 Divisions
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10
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1.10 Schedules
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10
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ARTICLE 2 THE CREDIT FACILITY
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11
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2.1 Establishment of Credit Facility
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11
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2.2 Loans and Borrowings
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11
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2.3 Requests for Borrowings
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11
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2.4 Interest
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12
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2.5 Evidence of Debt
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14
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2.6 Termination and Reduction by Lender of Credit Commitment
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14
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2.7 Mandatory Repayments of Excess Drawn Amounts
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15
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2.8 Voluntary Prepayments and Cancellation
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15
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2.9 Breakage Costs
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15
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2.10 Alternate Rate of Interest
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15
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2.11 Increased Costs; Illegality
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16
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2.12 Payments Generally
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17
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2.13 Addition of Borrowers
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17
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2.14 Withholding Tax.
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17
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES
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18
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3.1 Organization; Powers
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18
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3.2 Authorization; Enforceability
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19
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3.3 Governmental Approvals; No Conflicts
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19
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3.4 Financial Information
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19
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3.5 Litigation
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19
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3.6 Compliance with Laws and Agreements
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19
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3.7 Taxes
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20
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3.8 Pension Plans
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20
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3.9 No Order or Judgments
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20
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3.10 Insurance
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20
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3.11 Solvency
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20
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3.12 Environmental Matters
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20
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3.13 Money Laundering Laws
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21
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3.14 Office of Foreign Assets Control
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21
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3.15 Survival of Representations and Warranties
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21
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3.16 Deemed Repetition
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21
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ARTICLE 4 CONDITIONS PRECEDENT TO LOANS
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21
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4.1 Effective Date
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21
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4.2 Each Borrowing
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22
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ARTICLE 5 AFFIRMATIVE COVENANTS
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22
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5.1 Financial Statements and Other Information
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22
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5.2 Existence; Conduct of Business
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23
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5.3 Timely Payment
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23
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5.4 Books and Records
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23
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5.5 Compliance with Laws
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23
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5.6 Insurance
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23
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5.7 Operation of Business
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23
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5.8 Maintenance of Assets
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23
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5.9 Payment of Taxes
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24
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5.10 Use of Proceeds
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24
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ARTICLE 6 NEGATIVE COVENANTS
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24
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6.1 Fundamental Changes
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24
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ARTICLE 7 EVENTS OF DEFAULT
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25
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7.1 Events of Default
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25
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7.2 Legal Proceedings
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28
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7.3 Non-Merger
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28
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ARTICLE 8 SUBORDINATION AND DEPOSITS
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28
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8.1 Subordination
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28
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8.2 Deposits
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29
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ARTICLE 9 MISCELLANEOUS
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29
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9.1 Notices
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29
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9.2 Waivers
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31
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9.3 Expenses; Indemnity
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31
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9.4 Currency Indemnity
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32
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9.5 Successors and Assigns and Additions of Lenders
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32
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9.6 Survival
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33
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9.7 Counterparts; Integration; Effectiveness
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33
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9.8 Severability
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33
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9.9 Right of Set Off
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33
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9.10 Governing Law; Jurisdiction
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34
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9.11 Waiver of Jury Trial
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34
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9.12 Headings
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34
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9.13 Limited Recourse
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34
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- ii-
Exhibit A FORM OF BORROWING REQUEST
Exhibit B FORM OF DEPOSIT RECORD
Exhibit C FORM OF
CONFIRMATION OF SUBORDINATION
- iii-
CREDIT
AGREEMENT
THIS CREDIT AGREEMENT is effective as of March 31, 2020 and is entered into between BUUK Bermuda Holdco Limited, as the initial Borrower, such Persons as become Borrowers hereunder from
time to time, and BIP Bermuda Holdings I Limited, as Lender.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms
As used in this Agreement,
the following terms have the meanings specified below:
"Agreement" means this agreement and all schedules attached hereto, as amended, restated or supplemented from time to time.
"Applicable Law" means, in respect of any Person, property, transaction, event or other matter, as applicable, all Laws relating or applicable to such Person, property, transaction, event or
matter.
"Applicable Margin" means, with respect to any Loan, the applicable rate per annum, expressed as a percentage, set forth in the relevant column and row of the table below as
adjusted pursuant to Section 2.4.1:
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Type of Loan
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Applicable Margin
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Canadian Prime Rate Loan
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0.80%
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U.S. Base Rate Loan
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0.80%
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CDOR Loan
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1.80%
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LIBOR Loan
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1.80%
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"Authorization" means, with respect to any Person, any authorization, order, permit, approval, grant, licence, consent, franchise, privilege, certificate, judgment, writ, injunction, award,
determination, direction, decree, by-law, rule or regulation of any Governmental Authority having jurisdiction over such Person and legally binding on such Person.
"Available Amount"
means the amount of the Credit Facility as set out in Section 2.1 as reduced from time to time in accordance with the provisions of this Agreement.
"Borrowers" means, collectively, BUUK
Bermuda Holdco Limited and each Person that agrees to be bound hereunder as a Borrower hereunder pursuant to Section 2.13.
"Borrowing" means any availment of the Credit Facility and
includes a rollover or conversion of any outstanding Loan.
"Borrowing Request" means a request by any Borrower for a Borrowing pursuant to Section 2.3.
"Business Day" means any day
that is not a Saturday, Sunday or other day on which commercial banks in Toronto, Ontario or New York, New York are authorized or required by Applicable Law to remain closed and, in the case of any LIBOR Loan, is also not a day on which commercial
banks in London, England are authorized or required by Applicable Law to remain closed.
"Canadian Dollars" and "Cdn$" refer to lawful money of Canada.
"Canadian Prime Borrowing" means a Borrowing comprised of one or more Canadian Prime Rate Loans.
"Canadian Prime Rate Loan" means
a Loan denominated in Canadian Dollars which bears interest at a rate based upon the Canadian Prime Rate.
"Canadian Prime Rate" means, on any day, the annual rate of interest equal to the
greater of (a) the annual rate of interest announced by the Canadian Reference Lender and in effect as its prime rate at its principal office in Toronto, Ontario on such day for determining interest rates on Canadian Dollar-denominated commercial
loans in Canada, and (b) the annual rate of interest equal to the sum of the one-month CDOR in effect on such day plus 1.0% per annum.
"Canadian Reference Lender" means such bank that is
listed on Schedule I of the Bank Act (Canada) that is selected by the Lender by giving written notice of thereof to the Borrowers.
"CDOR" means (a) with respect to a CDOR Loan, the
rate per annum equal to the average per annum rate applicable to Canadian Dollar bankers' acceptances having an identical or comparable term as the proposed CDOR Loan displayed and identified as such on the "Reuters Screen CDOR Page" (as defined in
the International Swaps and Derivatives Association, Inc. 2000 definitions, as modified and amended from time to time), rounded to the nearest 1/100th of 1% (with .005% being rounded up), at approximately 10:00 a.m. (Toronto time) on the first day
of the Interest Period for such CDOR Loan, with a term equivalent to the Interest Period of such CDOR Loan or if such Interest Period is not equal to a number of months, with a term equivalent to the number of months closest to such Interest Period,
plus 0.10%; provided that if such rate does not appear on the Reuters Screen CDOR Page on such date as contemplated, then the CDOR on such date shall be calculated as the rate for the term referred to above applicable to Canadian Dollar
bankers' acceptances quoted by the Canadian Reference Lender as of 10:00 a.m. (Toronto time) on such date or, if such date is not a Business Day, then on the immediately preceding Business Day, plus 0.10%; provided further that the CDOR shall
at no times be less than 0%. If no CDOR is available for a particular Interest Period but CDORs are available for maturities both longer and shorter than such Interest Period, then the CDOR for such Interest Period shall be the CDOR
Interpolated Rate plus 0.10%.
"CDOR Borrowing" means a Borrowing comprised of one or more CDOR Loans.
"CDOR Interpolated Rate" means, in relation to any CDOR Loan and its Interest Period, a rate per annum determined by the Lender (which determination shall be conclusive and binding absent
manifest error) to be equal to the rate that results from interpolating on a linear basis between (a) the applicable CDOR for the longest period for which a CDOR is available that is shorter than such Interest Period and (b) the applicable CDOR for
the shortest period for which a CDOR is available that is longer than such Interest Period, in each case as of 11:00 a.m., Toronto time on the day two Business Days prior to the first day of such Interest Period; provided that the Interpolated Rate
shall at no times be less than 0%.
"CDOR Loan" means a Loan denominated in Canadian Dollars which bears interest at a rate based upon CDOR.
"Change in Control" means the acquisition by any Person other than Brookfield Asset Management Inc. or its Affiliates (or any combination thereof) of Control of any Borrower.
"Change in Law" means (a) the adoption of any new Law after the date of this Agreement, (b) any change in any existing Law or in the official interpretation or application thereof by any
Governmental Authority after the date of this Agreement, or (c) compliance by the Lender or any of its lenders with any request, guideline or directive (whether or not having the force of law, but in the case of a request, guideline or directive not
having the force of law, being a request, guideline or directive with which Persons customarily, and are expected by the relevant Governmental Authority to, comply and nevertheless considered to be binding on a Person or such Person's property) of
any Governmental Authority made or issued after the date of this Agreement.
"Control" and similar expressions mean a relationship between two Persons wherein one of such Persons has the
power, through the ownership of Equity Securities, by contract or otherwise, to directly or indirectly direct the management and policies of the other of such Persons, and includes, without limitation: (a) in the case of a corporation or a trust,
the ownership, either directly or indirectly through one or more Persons, of Equity Securities of such corporation or trust carrying more than 50% of the votes that may be cast to elect the directors or trustees of such corporation or trust or the
Control of the corporate trustee of such trust, either under all circumstances or under some circumstances that have occurred and are continuing, (other than Equity Securities held as collateral for a bona fide debt where the holder thereof
is not entitled to exercise the voting rights attached thereto unless a default has occurred), provided that such votes, if exercised, are sufficient to elect a majority of the directors or trustees of such corporation or trust or corporate trustee;
and (b) in the case of a general partnership or limited partnership, the power, through the ownership of Equity Securities, by contract or otherwise, to act as the managing partner appointed in respect of such general partnership or the general
partner appointed in respect of such limited partnership, or to otherwise Control such managing partner or general partner, as applicable.
"Credit Facility" means the revolving credit
facility established pursuant to Section 2.1.1.
"Default" means any event or condition which constitutes an Event of Default or which, upon notice, lapse of time or both, would, unless cured or waived, become an Event of Default.
"Distribution" means, with respect to any Person: (a) the retirement, redemption, retraction, purchase or other acquisition of any Equity Securities of such Person for cash or other property
of such Person; (b) the declaration or payment of any dividend, return of capital or other distribution (in cash or other property of such Person) of, on or in respect of, any Equity Securities of such Person; or (c) any other payment or
distribution (in cash or other property of such Person) of, on or in respect of any Equity Securities of such Person.
"Dollar Amount" means at any time with respect to outstanding Loans
under the Credit Facility, the aggregate of (a) the amount in Dollars of all Loans that are denominated in Dollars, and (b) the Dollar Equivalent at such time of all Loans that are denominated in Canadian Dollars.
"Dollar Equivalent" means, at the date of determination, the amount of Dollars that the Lender could purchase, in accordance with its normal practice, with a specified amount of Canadian
Dollars based on the Exchange Rate on such date.
"Dollars" and "$" refer to lawful money of the United States unless otherwise indicated.
"Effective Date" means March 31, 2020.
"Environmental Laws" means all applicable federal, provincial, local or foreign laws,
rules, regulations, codes, ordinances, orders, decrees, judgements, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, having the force of law and relating to the environment, health and
safety, or health protection, including the generation, use, handling, collection, treatment, storage, transportation, recovery, recycling, release, threatened release or disposal of any hazardous or regulated material.
"Equity Securities" means, with respect to any Person, any and all shares, units, interests, participations, rights in, or other equivalents (however designated and whether voting and
non-voting) of, such Person's capital, whether outstanding on the date hereof or issued after the date hereof, including without limitation any interest in a partnership, limited partnership or other similar Person and any unit or beneficial
interest in a trust, and any and all rights, warrants, options or other rights exchangeable for or convertible into any of the foregoing.
"Event of Default" has the meaning specified in
Section 7.1.
"Exchange Rate" means, on any day, the rate at which Canadian Dollars may be exchanged into Dollars as set forth at approximately 11:00 a.m. New York City time on such date
on the relevant Reuters screen for Canadian Dollars; provided that if such rate does not appear on any Reuters screen on any date, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange
rates as may be reasonably selected by the Lender.
"FATCA" means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to
comply with) and any current or future regulations or official interpretations thereof.
"Federal Funds (Effective) Rate" means, for any period, a fluctuating rate of interest per annum
equal for each day during such period to (a) the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or (b) if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the
Lender from three federal funds brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles in Canada or the United States in effect from time to
time which, for clarity, will include IFRS.
"Governmental Authority" means the Government of Canada or the United States, any other nation or any political subdivision thereof, whether
provincial, state, territorial or local, and any agency, authority, instrumentality, regulatory body, court or other ether entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government.
"Hostile Acquisition" means a proposed acquisition by any Borrower or any Subsidiary in circumstances in which the Person subject to such acquisition will not have, as of
the date of the acquisition notice in respect of such acquisition, evidenced its agreement or agreement in principle to such acquisition.
"IFRS" means the International Financial
Reporting Standards as issued by the International Accounting Standards Board and as in effect from time to time.
"Indemnitee" has the meaning specified in Section 9.3.2.
"Interest Payment Date" means, (a) in the case of any Canadian Prime Rate Loan or U.S. Base Rate Loan, the first Business Day of each month, and (b) in the case of any CDOR Loan or LIBOR
Loan, the last day of the Interest Period relating to such Loan, provided that if an Interest Period for any CDOR Loan or LIBOR Loan exceeds three months, then "Interest Payment Date" shall also include each date which occurs at each
three month interval during such Interest Period.
"Interest Period" means with respect to a CDOR Loan or LIBOR Loan, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or six months thereafter or such other periods thereafter as may from time to time be agreed to by the Borrower requesting such Loan and the Lender; provided that (a)
if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the immediately succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, and (c) no Interest Period shall extend beyond the Maturity Date. For purposes hereof, the date of a Borrowing initially shall be the date
on which such Borrowing is made and, in the case of a converted or continued Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
"IRC" means the Internal Revenue Code of 1986, as amended from time to time.
"Laws" means all applicable federal, state,
provincial, municipal, foreign and international statutes, acts, codes, ordinances, decrees, treaties, rules, regulations, municipal by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders,
decisions, rulings or awards or any provisions of the foregoing, and all policies, practices, directives and guidelines in each case of any Governmental Authority and having the force of law; and "Law" means any one or more of the
foregoing.
"Lender" means, collectively, BIP Bermuda Holdings I Limited and each Person that becomes a Lender hereunder from time to time.
"LIBOR" means with respect to any LIBOR Loan denominated in Dollars, for any Interest Period, the rate for Dollar borrowings appearing on the applicable Reuters screen (or, in each case, on
any successor or substitute page of such service, or any successor to or substitute for such servicing, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Lender from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, in each case as the rate for Dollar deposits with a maturity comparable to such Interest Period; provided that if such rate is not
available at such time for any reason, then "LIBOR" with respect to such LIBOR Loan for such Interest Period will be the rate at which Dollar deposits approximately equal to the amount of such LIBOR Loan and for a maturity comparable to such
Interest Period are offered by the principal London office of a commercial bank selected by the Lender in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period; provided further that if any such rate is below zero, LIBOR shall be deemed to be zero and LIBOR shall be adjusted as applicable to reflect the Statutory Reserve Rate by multiplying the rate described
above by the Statutory Reserve Rate.
"LIBOR Borrowing" means a Borrowing comprised of one or more LIBOR Loans.
"LIBOR
Loan" means a loan denominated in Dollars which bears interest at a rate based upon LIBOR.
"Loan" means any LIBOR Loan, Canadian Prime Rate Loan, CDOR Loan or U.S. Base Rate Loan made by the Lender to a Borrower pursuant to this
Agreement.
"Material Adverse Effect" means any event, development or circumstance which has had or would have (a) a material adverse effect on the business, assets, properties, operations
or financial condition of the Borrowers and their Subsidiaries taken as a whole, or (b) a material adverse effect on the ability of the Borrowers (taken as a whole) to perform their obligations under this Agreement.
"Maturity Date" means the date that is ten (10) years from the Effective Date, unless the Agreement is terminated in accordance with Section 2.6, in which case the Maturity Date shall be the
date the Agreement is so terminated.
"Money Laundering Laws" has the meaning specified in Section 3.13.
"Obligations" means
all present and future debts, liabilities and obligations of the Borrowers to the Lender under this Agreement, whether absolute or contingent, due or to become due, existing on the Effective Date or thereafter arising, including without limitation
with respect to all Loans, and all interest and fees owing hereunder (including those that accrue after the commencing by or against any Borrower of any insolvency or similar proceeding).
"OFAC" has the meaning specified in Section 3.14.
"OFAC Lists" has the meaning specified in Section 3.14.
"Person" includes any natural person, corporation, company, limited liability company, unlimited liability company, trust, joint venture, association, incorporated organization, partnership,
limited partnership, Governmental Authority or other entity.
"Responsible Officer" means, in respect of any Person, any director or officer of such Person or the general or managing
partner of such Person.
"Senior Debt" has the meaning given to that term in Section 8.1(a).
"Specified Threshold Amount"
means, as at any date, the greater of (a) $125,000,000 and (b) an amount equal to 10% of the Borrowers' consolidated equity as at such date.
"Statutory Reserve Rate" means a
fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar reserve requirements (including any marginal,
special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Federal Reserve Board, the Financial Services Authority, the European Central Bank or other Governmental Authority for any
category of deposits or liabilities customarily used to fund loans in the applicable currency, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fee or similar requirements shall, in the case of Dollar
denominated Loans, include those imposed pursuant to Regulation D of the Federal Reserve Board. LIBOR Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without the benefit of or credit for
proration, exemptions or offsets that may be available to lenders from time to time under any Applicable Law. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any such change in any reserve, liquid asset,
fee or similar requirement.
"subsidiary" means, with respect to any Person (the "parent") at any date, any corporation, limited liability company, partnership, limited partnership, trust or other entity of which
securities or other ownership interests representing more than 50% of the combined voting stock are owned, directly or indirectly, by such Person or by any one or more subsidiaries of such Person.
"Subsidiaries" means, collectively, the subsidiaries of the Borrowers, and "Subsidiary" means any of them.
"Taxes" means
all present and future taxes, charges, fees, levies, imposts, surtaxes, duties and other assessments, including all income, sales, use, goods and services, value added, capital, capital gains, alternative, net worth, transfer, profits, withholding,
payroll, employer health, excise, real property and personal property taxes, and any other taxes, customs duties, fees, assessments, or similar charges of any nature, imposed by any Governmental Authority and whether disputed or not.
"Type", when used in reference to any Loan or Borrowing, refers to whether such Loan or Borrowing is a U.S. Base Rate Loan, Canadian Prime Rate Loan, LIBOR Loan or CDOR Loan or a U.S. Base
Rate Borrowing, Canadian Prime Borrowing, LIBOR Borrowing or CDOR Borrowing, as the case may be.
"U.S. Base Rate" means, on any day, the annual rate of interest equal to the greater
of (a) the annual rate of interest announced by a commercial Canadian bank selected by the Lender and in effect as its base rate at its principal office in Toronto, Ontario on such day for determining interest rates on Dollar demand commercial loans
in Canada, (b) the sum of the Federal Funds (Effective) Rate plus 0.50% per annum, and (c) LIBOR for Dollars for one-month term in effect on such day plus 1.00%. Any change in the U.S. Base Rate due to a change in the applicable base rate, the
Federal Funds (Effective) Rate or such LIBOR shall be effective from and including the effective date of such change in the applicable base rate, the Federal Funds (Effective) Rate or such LIBOR, respectively.
"U.S. Base Rate Borrowing" means a Borrowing comprised of one or more U.S. Base Rate Loans.
"U.S. Base Rate Loan" means a Loan
denominated in Dollars which bears interest at a rate based upon the U.S. Base Rate.
"Withholdings" has the meaning given to that term in Section 2.14.
1.2 Terms Generally
The definitions of terms
herein will apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and
"including" will be deemed to be followed by the phrase "without limitation". Unless the context requires otherwise: (a) any definition of or reference to any agreement, instrument or other document herein will be construed as referring to
such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); (b) any reference
herein to any statute or any Section thereof will, unless otherwise expressly stated, be deemed to be a reference to such statute or Section as amended, restated or re-enacted from time to time; (c) any reference herein to any Person will be
construed to include such Person's successors and permitted assigns; (d) the words "herein", "hereof" and "hereunder", and words of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision
hereof; (e) all references herein to Articles, Sections and Exhibits will be construed to refer to Articles and Sections of, and Exhibits to, this Agreement; and (f) the words "asset" and "property" will be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contractual rights.
1.3 Accounting Terms; GAAP
Except as otherwise expressly provided herein, all terms of an accounting or financial nature will be
construed in accordance with GAAP, as in effect from time to time.
1.4 Time
All time references herein will,
unless otherwise specified, be references to local time in Toronto, Ontario, Canada. Time is of the essence of this Agreement.
1.5 Borrowers Jointly and Severally Liable
Each Person that becomes a Borrower is jointly and severally liable for all Obligations,
including the obligation to pay all amounts owing hereunder to the Lender on the dates such amounts are due and on the Maturity Date. Each Borrower agrees that if any of the Obligations are not paid in full when due (whether at stated
maturity, as a mandatory repayment, by acceleration or otherwise), the Borrowers will, jointly and severally, promptly pay the same without any demand or notice whatsoever and each Borrower jointly and severally irrevocably and unconditionally
accepts joint and several liability with respect to the payment and performance of all Obligations of each other Borrower, it being the intention of the parties hereto that all Obligations be joint and several obligations of each Borrower without
preference or distinction among them. Each Borrower agrees that delivery of funds to any Borrower under this Agreement shall constitute valuable consideration and reasonably equivalent value to all Borrowers for purposes of binding them and
their assets on a joint and several basis for the Obligations hereunder. Each Borrower agrees that it will not seek payment, directly or indirectly, from any other Borrower through a claim of indemnity, contribution, subrogation or otherwise
until all Obligations have been repaid in full and the Credit Facility has terminated.
1.6 Borrowers Bound by Delivered
Certificates and Notices
Each Borrower hereby authorizes each other Borrower to deliver or submit to the Lender on behalf of such Borrower (and all other Borrowers) any Borrowing Request, notice or certificate
required or permitted to be delivered or submitted by it or on its behalf hereunder and agrees that it will be bound by, and shall be responsible for any information set forth in any such Borrowing Request, notice or certificate to the same extent
as if such Borrowing Request, notice or certificate had been executed by a Responsible Officer of such Borrower and delivered or submitted by such Borrower.
1.7 Currency Equivalents
For purposes of determining (a) whether the amount of any Borrowing, together with all other Borrowings then
outstanding or to be borrowed at the same time as such Borrowing, would exceed the Available Amount, (b) the unutilized amount of the Credit Facility, and (c) the outstanding principal amount of any Borrowing, the outstanding principal amount of any
Loan that is denominated in Canadian Dollars shall be deemed to be the Dollar Equivalent of such amount determined as of the applicable determination date.
1.8 Amount of Credit
Any reference herein to the amount of credit outstanding means, at any particular time:
(a) in the case of a Canadian Prime Rate Loan or CDOR Loan, the Dollar Equivalent of the principal
amount thereof; and
(b) in the case of a LIBOR Loan or U.S. Base Rate Loan, the principal
amount of such Loan.
1.9 Divisions
For all
purposes of this Agreement, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction's laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person; and (b) if any Person comes into existence, such new Person shall be deemed to have been
organized on the first date of its existence by the holders of its Equity Securities at such time.
1.10 Schedules
The following are the Schedules and Exhibits annexed hereto, incorporated by reference and deemed to be a part
hereof:
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Exhibits:
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A
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Borrowing Request
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B
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Form of Deposit Record
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C
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Form of Confirmation of Subordination
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ARTICLE
2
THE CREDIT FACILITY
2.1 Establishment of Credit Facility
2.1.1 Subject to the terms and conditions set forth herein, the Lender hereby establishes in
favour of the Borrowers a Credit Facility in the amount of $1,000,000,000 (the "Available Amount") and commits to make Loans to the Borrowers from time to time during the period commencing on the Effective Date and ending on the Maturity
Date, the aggregate outstanding principal amount of all such Loans not exceeding at any time the Available Amount. Subject to the terms and conditions of this Agreement, the Borrowers may borrow, repay and re-borrow Loans.
2.1.2 Advances under the Credit Facility are to be used by the Borrowers for their general
corporate purposes, provided that in no event will the Credit Facility be used to finance a Hostile Acquisition without the consent of the Lender.
2.2 Loans and Borrowings
Each Borrowing under the Credit Facility will be comprised of U.S. Base Rate Loans or LIBOR Loans in Dollars
or Canadian Prime Rate Loans or CDOR Loans in Canadian Dollars, as any Borrower may request in accordance herewith.
2.3 Requests for Borrowings
2.3.1 To request a Borrowing under the Credit Facility, any Borrower shall notify the Lender of such request by written Borrowing Request substantially in the form of Exhibit A not
later than 11:00 a.m., Toronto time, four (4) Business Days before the date of the proposed Borrowing or such shorter period as the Lender may agree to. Each Borrowing Request shall be irrevocable. The Lender is entitled to rely upon and
act upon any Borrowing Request given or purportedly given by any Borrower, and each Borrower hereby waives the right to dispute the authenticity and validity of any such transaction once the Lender has advanced funds, based on such Borrowing
Request. Each Borrowing Request shall specify the following information:
(a) the
aggregate amount of the requested Borrowing;
(b) the date of such Borrowing, which shall be a
Business Day;
(c) whether such Borrowing is to be a U.S. Base Rate Borrowing, a LIBOR
Borrowing, a Canadian Prime Borrowing or a CDOR Borrowing;
(d) in the case of a CDOR Borrowing
or LIBOR Borrowing, the initial Interest Period to be applicable to such Borrowing, which shall be a period contemplated by the definition of the term "Interest Period"; and
(e) the location and number of the Borrower's account to which funds are to be disbursed.
2.3.2 Each CDOR Borrowing and LIBOR Borrowing under the Credit Facility initially shall have the
Interest Period specified in the applicable Borrowing Request. Thereafter, a Borrower may elect to convert any Borrowing to any different Type or to continue such Borrowing and, in the case of a CDOR Borrowing or LIBOR Borrowing, may elect the
Interest Periods therefor. The Borrowers may elect different options with respect to different portions of the affected Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. To make an election
pursuant to this Section 2.3.2, a Borrower shall notify the Lender of such election by delivering a Borrowing Request required under Section 2.3.1 as if the Borrower were requesting a Borrowing to be made on the effective date of such
election. Each such Borrowing Request shall be irrevocable. In addition to the information specified in Section 2.3.1, each Borrowing Request shall specify the Borrowing to which such request applies and, if different options are elected
with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing. If no election is made pursuant to this Section 2.3.2 at the end of an Interest Period applicable to any CDOR Loan or LIBOR Loan, the
applicable Borrower shall be deemed to have elected an Interest Period of one month for such CDOR Loan or LIBOR Loan for the immediately following Interest Period. Notwithstanding any contrary provision hereof, if an Event of Default has occurred
and is continuing and the Lender so notifies the Borrowers, then so long as an Event of Default is continuing (a) no outstanding Borrowing may be converted to or continued as a CDOR Borrowing or LIBOR Borrowing and (b) unless repaid, each CDOR
Borrowing and LIBOR Borrowing shall be converted to a Canadian Prime Borrowing or U.S. Base Rate Borrowing, respectively, at the end of the then-current Interest Period applicable thereto.
2.3.3 If at any time the Lender determines that LIBOR or CDOR is no longer determinable or the
supervisor for the administrator of LIBOR or CDOR or a Governmental Authority having jurisdiction over banks or other financial institutions has made a public statement identifying a specific date after which LIBOR or CDOR shall no longer be used
for determining interests rates for loans, then the Lender shall give written notice of such determination to the Borrowers and the Lender and the Borrowers shall endeavour to establish an alternate rate of interest to LIBOR or CDOR (as applicable)
that gives due consideration to the then prevailing market convention for determining a replacement standard and shall enter into an amendment to this Agreement to reflect such agreed upon alternate rate of interest.
2.3.4 Each CDOR Borrowing and LIBOR Borrowing will be subject to Sections 2.10 and 2.11.
2.4 Interest
2.4.1 The Loans under the Credit Facility comprising each U.S. Base Rate Borrowing and Canadian
Prime Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 days or 366 days, as the case may be) at a rate per annum equal to the U.S. Base Rate and Canadian Prime Rate, respectively, plus the
Applicable Margin from time to time in effect. It is understood and agreed that if at any time after the date hereof the Lender's cost of borrowing is increased, the Lender will be entitled, after consultation with the Borrowers, to increase the
Applicable Margin that is applicable to all or any Types of Loans or Borrowings to reflect the Lender's increased cost of making such Loans or Borrowings available to the Borrowers.
2.4.2 The Loans under the Credit Facility comprising each CDOR Borrowing shall bear interest
(computed on the basis of the actual number of days in the relevant Interest Period over a year of 365 or 366 days, as the case may be) at CDOR for the Interest Period in effect for such CDOR Loans plus the Applicable Margin from time to time in
effect.
2.4.3 The Loans under the Credit Facility comprising each LIBOR Borrowing shall bear
interest (computed on the basis of the actual number of days in the relevant Interest Period over a year of 360 days) at LIBOR for the Interest Period in effect for such LIBOR Loans plus the Applicable Margin from time to time in effect.
2.4.4 The applicable U.S. Base Rate, Canadian Prime Rate, LIBOR and CDOR Rate shall be determined
by the Lender, and such determination shall, absent manifest error, constitute prima facie evidence thereof.
2.4.5 Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date and upon termination of the Credit Facility, and in the event of any repayment or
prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment together with all applicable breakage costs.
2.4.6 All interest hereunder shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). Any Loan that is repaid on the same day on which it is made shall bear interest for one day.
2.4.7 For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith is to be
calculated on the basis of any period of time that is less than a calendar year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in
which the same is to be ascertained and divided by 360, 365 or 366, as applicable. The rates of interest under this Agreement are nominal rates, and not effective rates or yields. The principle of deemed reinvestment of interest does not
apply to any interest calculation under this Agreement.
2.4.8 If any provision of this
Agreement would oblige any Borrower to make any payment of interest or other amount payable to the Lender in an amount or calculated at a rate which would be prohibited by Law or would result in a receipt by the Lender of "interest" at a "criminal
rate" (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the
case may be, as would not be so prohibited by Law or so result in a receipt by the Lender of "interest" at a "criminal rate", such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows:
(a) first, by reducing the amount or rate of interest required to be paid to the Lender under this
Section 2.4; and
(b) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid
to the Lender which would constitute interest for purposes of Section 347 of the Criminal Code (Canada).
2.4.9 Notwithstanding the foregoing, if an Event of Default has occurred and is continuing, the Loans will bear interest to the extent permitted by Applicable Law, after as well as
before judgment, at a rate per annum equal to 2.0% plus the rate otherwise applicable to such Loans. All other amounts owing under this Agreement will bear interest at an interest rate equal to the one month LIBOR rate plus 4.0% per annum.
2.5 Evidence of Debt
2.5.1 The Lender shall maintain accounts in which it shall record (a) the amount of each Loan made
hereunder and the relevant Interest Periods applicable thereto, (b) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to the Lender hereunder, and (c) the amount of any sum received by the Lender
hereunder.
2.5.2 The entries made in the accounts maintained pursuant to Section 2.5.1 shall
be prima facie evidence (absent manifest error) of the existence and amounts of the obligations recorded therein; provided that the failure of the Lender to maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrowers to repay the Loans and all other amounts payable in connection therewith, including interest and fees, in accordance with the terms of this Agreement.
2.6 Termination and Reduction by Lender of Credit Commitment
2.6.1 The Lender may at any time after the fifth anniversary of the Effective Date, upon giving
the Borrowers 90 days' prior written notice, terminate its commitment with respect to the Credit Facility and the Borrowers must repay all amounts outstanding under the Credit Facility (including all interest and fees payable hereunder) on the
termination date that is so elected by the Lender.
2.6.2 Upon the occurrence of a Change in
Control, the Lender shall have the right to terminate its commitment with respect to the Credit Facility upon giving the Borrowers 90 days' prior written notice. If the Lender so terminates the Credit Facility, the Borrowers must repay all
amounts outstanding under the Credit Facility (including all interest and fees payable hereunder) on the termination date that is so elected by the Lender.
2.6.3 Unless previously terminated, the commitment of the Lender with respect to the Credit Facility will terminate on the Maturity Date and each Borrower hereby unconditionally
jointly and severally promises to pay to the Lender the then unpaid principal amount of each Loan on the Maturity Date (or such earlier date that the Loans have been accelerated pursuant to the last paragraph of Section 7.1) together with all
interest accrued thereon and other amounts outstanding under this Agreement.
2.7 Mandatory Repayments of Excess
Drawn Amounts
If at any time the Lender determines that the Dollar Amount outstanding under the Credit Facility exceeds the Available Amount, then upon written notice from the Lender to such effect, the
Borrowers will, within 24 hours, make a prepayment of the Credit Facility in an amount equal to such excess.
2.8 Voluntary Prepayments and Cancellation
The Borrowers may, from time to time at their option, prepay any Loan without premium or
penalty or permanently reduce the Available Credit of the Credit Facility, provided that:
(a) any prepayment or reduction is in a minimum amount of $100,000;
(b) the Borrowers pay concurrently with any such prepayment all interest accrued on the amount
prepaid together with breakage costs, if any, incurred by the Lender as a result of any such prepayment and that are payable pursuant to Section 2.9;
(c) the Lender receives written notice of such prepayment, at least three Business Days prior to the date of such prepayment and specifying the amount and date of such
prepayment. Any such notice shall be irrevocable and the Borrowers shall be bound to prepay in accordance with such notice; and
(d) in the event that the notice provided to the Lender in accordance with (c) above, indicates that the prepaid amount is to permanently prepay the Credit Facility pursuant to
this Section 2.8, then the amount prepaid may not be re-borrowed thereunder (otherwise, the Borrowers will retain the right to re-borrow amounts prepaid in accordance with the terms and conditions of this Agreement).
2.9 Breakage Costs
If (a) any Borrower fails
to borrow or continue any CDOR Loan or LIBOR Loan on the date specified in any Borrowing Request delivered pursuant hereto, or (b) any CDOR Loan or LIBOR Loan is paid for any reason on any day other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default or voluntary or mandatory prepayment), then the Borrowers will compensate the Lender for all loss, costs and expenses that the Lender incurs in connection with such event (including
all loss, costs and expenses that the Lender incurs under its own credit facilities), as determined by the Lender. A certificate of the Lender setting forth any amount or amounts that the Lender is entitled to receive pursuant to this Section
2.9 will be delivered to the Borrowers and will, absent manifest error, constitute prima facie evidence thereof. The Borrowers will pay the Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
2.10 Alternate Rate of Interest
If prior to the
commencement of any Interest Period for a CDOR Borrowing or LIBOR Borrowing:
(a) the Lender determines that adequate and
reasonable means do not exist for ascertaining CDOR or LIBOR for such Interest Period; or
(b) the Lender determines that CDOR or LIBOR for such Interest Period will not adequately and
fairly reflect the cost to the Lender of making or maintaining CDOR Loans or LIBOR Loans included in such Borrowing for such Interest Period;
then the Lender shall give notice thereof to the Borrowers as promptly
as practicable thereafter and, until the Lender notifies the Borrowers that the circumstances giving rise to such notice no longer exist, (i) any Borrowing Request that requests the continuation of any Borrowing as an affected CDOR Borrowing or a
LIBOR Borrowing (as applicable) shall be deemed to request conversion to a Canadian Prime Borrowing or U.S. Base Rate Borrowing (as applicable), and (ii) any Borrowing Request that requests an affected CDOR Borrowing or LIBOR Borrowing (as
applicable) shall be made as a Canadian Prime Borrowing or U.S. Base Rate Borrowing (as applicable).
2.11 Increased Costs; Illegality
2.11.1 If any Change in Law shall:
(a) impose, modify or deem applicable any reserve, special deposit, additional capital, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, the Lender or any of its lenders; or
(b) impose on the Lender or any of its lenders or the London interbank market any other condition affecting any cost or charge directly or indirectly incurred by the Lender in
connection with a Loan hereunder (including the imposition on the Lender or any of its lenders of, or any change to, any Tax or other charge with respect to its or their CDOR Loans or LIBOR Loans or participation therein, or its obligation to make
CDOR Loans or LIBOR Loans);
and the result of any of the foregoing shall be to increase the cost to the Lender of making, continuing, converting to or maintaining any Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or otherwise), then the Borrowers will pay to the Lender such additional amount or amounts as will
compensate the Lender for such additional costs incurred or reduction suffered.
2.11.2 If
the Lender determines that any Change in Law regarding capital requirements has or would have the effect of reducing the Lender's rate of return with respect to the Loans made by the Lender to a level below that which the Lender would have achieved
but for such Change in Law prior to the occurrence of such Change in Law, then from time to time the Borrowers will pay to the Lender such additional amount or amounts as will compensate the Lender for any such reduction suffered.
2.11.3 A certificate of the Lender setting forth the amount or amounts necessary to compensate
the Lender as specified in Sections 2.11.1 or 2.11.2 shall be delivered to the Borrowers, and any such certificate shall include a brief description of the Change in Law and a calculation of the amount or amounts necessary to compensate the Lender
and shall, absent manifest error, be prima facie evidence of the amount of such compensation. The Borrowers shall pay the Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
2.11.4 Failure or delay on the part of the Lender to demand compensation pursuant to this
Section 2.11 shall not constitute a waiver of the Lender's right to demand such compensation.
2.11.5 In the event that the Lender shall have determined (which determination shall be
reasonably exercised and shall, absent manifest error, constitute prima facie evidence thereof) at any time that the making or continuance of any Type of Loan has become unlawful or materially restricted as a result of compliance by the
Lender in good faith with any Applicable Law, then, in any such event, the Lender shall give prompt notice (by telephone and confirmed in writing) to the Borrowers of such determination. Upon the giving of the notice to the Borrowers referred to in
this Section 2.11.5, the Borrowers' right to request (by continuation or otherwise), and the Lender's obligation to make, Loans of that Type shall be immediately suspended and if the affected Type of Loans are then outstanding, the Borrowers shall
immediately, or if permitted by Applicable Law, no later than the date permitted thereby, upon at least one Business Day prior written notice to the Lender, convert each such affected Type of Loan into a Type of Loan that is not so affected.
2.12 Payments Generally
The Borrowers shall make
each payment required to be made by them hereunder (whether of principal, interest or fees, amounts payable under any of Sections 2.9 or 2.11 or otherwise) prior to 12:00 p.m., Toronto time, on the date when due, in immediately available funds,
without set-off or counterclaim except for any deductions or withholdings for any present or future Taxes or similar charges that the Borrower is required to make pursuant to Applicable Law. Any amounts received after such time on any date
may, in the discretion of the Lender, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. The Borrowers shall make payments to the Lender in accordance with
instructions provided by the Lender to the Borrowers.
2.13 Addition of
Borrowers
Any Borrower may elect from time to time to designate another Subsidiary or a subsidiary of Brookfield Infrastructure Partners L.P. as a Borrower hereunder subject to delivering to the Lender a
signed accession agreement in the form required by the Lender and from and after the date of such designation, such Person shall for all purposes be a "Borrower" hereunder.
2.14 Withholding Tax.
2.14.1 Any and all payments required to be made by or on behalf of the Borrowers under this
Agreement will be made free and clear of, and without deduction or withholding for, or on account of, any present or future Taxes or similar charges (collectively, the "Withholdings") unless such Withholdings are required to be made under
Applicable Law. If a Borrower is so required to deduct or withhold any Withholdings from any amount payable to the Lender:
(a) The applicable Borrower will remit the Withholdings to the appropriate taxation authority
following its deduction or withholding prior to the date on which penalties attach thereto.
(b) Within 30 days after such Withholdings have been remitted, the applicable Borrower will
deliver to the Lender evidence satisfactory to the Lender, acting reasonably, that the taxes or charges in respect of which such deduction or withholding was made have been remitted to the appropriate taxation authority.
2.14.2 If a payment made to the Lender under this Agreement by any Borrower would be subject to
U.S. federal withholding tax imposed by FATCA if the Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the IRC, as applicable), the Lender shall deliver to
such Borrower at the time or times prescribed by law and at such time or times reasonably requested by such Borrower such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional
documentation reasonably requested by such Borrower as may be necessary for it to comply with its obligations under FATCA and to determine that the Lender has complied with the Lender's obligations under FATCA or to determine the amount to deduct
and withhold from such payment. Solely for purposes of this 2.14.2, "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
2.14.3 The Borrowers will pay any and all present or future stamp or documentary taxes or any other taxes or arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement to the relevant Governmental Authority in accordance with Applicable Law.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lender that:
3.1 Organization; Powers
It is organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority and holds all requisite licences, permits, approvals and qualifications necessary to carry on its business as
presently conducted, and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except to the extent that the failure to be so qualified would not have a Material Adverse Effect.
3.2 Authorization; Enforceability
This
Agreement is within its corporate or partnership power and has been authorized by all necessary corporate and other action. This Agreement has been executed and delivered by it and constitute legal, valid and binding obligations of it,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganisation, moratorium or other Laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
3.3 Governmental Approvals; No Conflicts
This Agreement, except for matters that, individually or in the aggregate would not result in a Material Adverse Effect, (a) does not require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, (b) does not violate any Applicable Law or its constating or organizational documents or any order of any Governmental Authority, (c) does not violate in any material way or result in a default under any
indenture, agreement or other instrument binding upon it or any of its assets, or give rise to a right thereunder to require any payment to be made by it, and (d) does not result in the creation or imposition of any lien on any of its assets.
3.4 Financial Information
3.4.1 All financial statements delivered to the Lender pursuant to this Agreement in respect of a
Borrower present fairly, in all material respects, the financial position and results of operations and cash flows of such Borrower as of such dates and for such periods of such financial statements, in accordance with GAAP.
3.4.2 All written information (including that disclosed in all financial statements) pertaining to
the Borrowers that has been made available to the Lender by any Borrower or any authorized representative of any Borrower, taken as a whole, was, when furnished, complete and correct in all material respects and did not, when furnished, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made.
3.5 Litigation
There are no actions, suits or
proceedings pending or, to any Borrower's actual knowledge, threatened against or affecting any Borrower, any of the Subsidiaries or any of their assets that would, if determined adversely, affect the legality or enforceability of this Agreement or
have a Material Adverse Effect.
3.6 Compliance with Laws and Agreements
Except for any matters that, individually or in the aggregate, would not result in a Material Adverse Effect, the Borrowers and the Subsidiaries are in compliance with all Laws applicable to them or their property
(including all labour laws) and all indentures, agreements and other instruments binding upon them or their property (including all labour contracts). Except for any matters that, individually or in the aggregate, would not result in a
Material Adverse Effect, the Borrowers and the Subsidiaries have not violated or failed to obtain any Authorization necessary to the ownership of their property or assets or the conduct of their businesses.
3.7 Taxes
The Borrowers and the Subsidiaries
have timely filed or caused to be filed all Tax returns and reports required to have been filed and have paid or caused to be paid all Taxes required to have been paid (including all instalments with respect to the current period) and have made
adequate provision for Taxes for the current period, except Taxes which individually or in the aggregate would not have a Material Adverse Effect.
3.8 Pension Plans
All material obligations of the Borrowers and the Subsidiaries (including fiduciary, funding, investment and
administration obligations) required to be performed in connection with their pension and benefit plans and the funding agreements therefor have been performed on a timely basis and there are no unfunded or undisclosed liabilities thereunder, except
to the extent that the same individually or in aggregate would not result in a Material Adverse Effect.
3.9 No Order or Judgments
There are no orders, judgments, award or decrees outstanding against any Borrower or any Subsidiary, or
affecting their assets, that would have a Material Adverse Effect.
3.10 Insurance
Except for any matters which
would individually or in aggregate not have a Material Adverse Effect, all policies of fire, liability, workers' compensation, casualty, flood, business interruption, third party liability, and other forms of insurance owned or held by the Borrowers
and the Subsidiaries provide insurance coverage in at least such amounts and against at least such risks (but including in any event public liability) in each case as are usually insured against in the same general area by companies engaged in the
same or a similar business for the assets and operations of the Borrowers and the Subsidiaries (as applicable).
3.11 Solvency
No Borrower is an "insolvent person" within the meaning of the Bankruptcy and Insolvency Act (Canada) or the
United States Bankruptcy Code.
3.12 Environmental Matters
Neither the property of the Borrowers and the Subsidiaries, nor the operations conducted thereon violate any applicable order of any Governmental Authority made pursuant to Environmental Laws, where such violation
would result in remedial obligations having a Material Adverse Effect.
3.13 Money Laundering Laws
The operations of the Borrowers are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the U.S. Currency and Foreign Transactions Reporting Act
of 1970, as amended, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the other applicable money laundering Laws to which they are subject, including the rules and regulations thereunder
(collectively, the "Money Laundering Laws") and no action, suit or proceeding by or before any court or governmental agency, authority or body involving any of them with respect to the Money Laundering Laws is pending, except as disclosed in
writing to the Lender or as would not have a Material Adverse Effect.
3.14 Office of
Foreign Assets Control
None of the Borrowers and none of their respective directors, officers, Subsidiaries, or, to their knowledge, employees is (a) a person included in the Specially Designated Nationals and
Blocked Persons Lists (the "OFAC Lists"), as published from time to time by the Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC"), or (b) currently subject to any U.S. economic sanctions administered by
OFAC.
3.15 Survival of Representations and Warranties
The representations and warranties set out in this Article 3 and in any certificate, notice, delivered pursuant to this Agreement will survive the execution and delivery of this Agreement notwithstanding any
investigation or examination that may be made by the Lender.
3.16 Deemed
Repetition
The representations and warranties of the Borrowers contained in this Article 3 will be deemed to be repeated on the date of the delivery of each Borrowing Request and each rollover of a Borrowing
as if made on each such date, unless such representations and warranties expressly refer to a different date.
ARTICLE 4
CONDITIONS PRECEDENT TO LOANS
4.1 Effective Date
The obligations of the
Lender to make Loans hereunder shall not become effective until the date on which the Lender confirms to each Borrower that is a party to this agreement on the date hereof that each of the following conditions is satisfied (or waived by the Lender
in accordance with Section 9.2):
4.1.1 Credit Agreement. The Lender shall have
received from such Borrower a counterpart of this Agreement signed on behalf of such Borrower.
4.1.2 Other Documentation. The Lender shall have received such other documents and
instruments as are both customary for transactions of this type and as it may reasonably request.
4.2 Each
Borrowing
The obligation of the Lender to make a Loan on the occasion of any Borrowing (including on the occasion of the initial Borrowings hereunder), is subject to the satisfaction of the following
conditions: it being understood that the conditions are included for the exclusive benefit of the Lender and may be waived in writing in whole or in part by the Lender at any time:
(a) the representations and warranties of the Borrowers set forth in this Agreement shall be true
and correct on and as of the date of each such Borrowing, as if made on such date unless such representations and warranties expressly refer to a different date;
(b) at the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing; and
(c) the Lender shall have received a Borrowing Request in the manner and within the time period
required by Section 2.3.
ARTICLE 5
AFFIRMATIVE COVENANTS
From (and including) the Effective Date until the expiry or termination of the Credit Facility and the
payment in full of all Obligations owing hereunder, the Borrowers covenant and agree with the Lender that:
5.1 Financial Statements and Other Information
The Borrowers will furnish or cause to be furnished to the Lender:
5.1.1 at the request of the Lender, the most recently prepared unaudited financial statements of
any Borrower;
5.1.2 forthwith after a Responsible Officer of a Borrower learns of the
existence of a Default or Event of Default, the certificate of such Borrower, signed by a Responsible Officer, specifying the event which constitutes a Default or Event of Default and the steps being taken to cure such Default or Event of
Default;
5.1.3 forthwith after a Responsible Officer of a Borrower learns that any
representation or warranty is inaccurate in any material respect when made or deemed to have been made, notice thereof;
5.1.4 forthwith upon receipt thereof, notice to the Lender of any action, suit or proceeding affecting any Borrower or any Subsidiary that would, if determined adversely, have a
Material Adverse Effect and will, from time to time, furnish the Lender with such information reasonably required by the Lender with respect to the status of any such action, suit or proceeding; and
5.1.5 such other information as the Lender may from time to time reasonably request.
5.2 Existence; Conduct of Business
Each
Borrower will maintain its existence in good standing and conduct its businesses in a prudent manner.
5.3 Timely Payment
The Borrowers will make due and timely payment, as provided for herein, of the principal of all Loans, all
interest thereon and all fees and other amounts required to be paid hereunder.
5.4 Books and Records
The Borrowers will at
all times keep true and complete financial books and records and accounts in accordance with, to the extent applicable, GAAP.
5.5 Compliance with Laws
The Borrowers will, and will cause the Subsidiaries to, comply with all Laws applicable to them or their
property, except where the occurrence of such non-compliance, individually or in the aggregate, would not result in a Material Adverse Effect. The Borrowers will not directly or indirectly (a) lend or contribute by way of equity the proceeds
of the Loans to any Person on the OFAC Lists at the time of such loan or contribution or any Person that is known to the Borrowers as being owned or controlled by a Person on the OFAC Lists at such time, or (b) knowingly use or otherwise knowingly
make available the proceeds of the Loans to any subsidiary, joint venture partner or other Person in violation of any of the U.S. economic sanctions administered by OFAC.
5.6 Insurance
The Borrowers will, and will
cause the Subsidiaries to, maintain or cause to be maintained, with financially sound and reputable insurers, insurance with respect to their respective properties and business against such liabilities, casualties, risks and contingencies and in
such types (including business interruption insurance and, to the extent available at commercially reasonable rates, flood insurance) and amounts as is customary in the case of Persons engaged in the same or similar businesses, except where the
occurrence of such non-compliance, individually or in the aggregate, would not result in a Material Adverse Effect.
5.7 Operation of Business
The Borrowers will, and will cause the Subsidiaries to, maintain all necessary licences, approvals and
permits and manage and operate their businesses in compliance in all material respects with all Applicable Laws, except where a failure to so maintain, manage and operate would not result in a Material Adverse Effect.
5.8 Maintenance of Assets
The Borrowers will
cause their properties and the properties of the Subsidiaries, to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in their judgment may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing will prevent or
restrict the sale, abandonment or other disposition of any of such properties or any failure to take any of the foregoing actions where such action or failure would not result in a Material Adverse Effect.
5.9 Payment of Taxes
The Borrowers will, and
will cause the Subsidiaries to, on or before the date for payment thereof, pay all Taxes imposed upon them or upon their assets, the non-payment of which would result in a Material Adverse Effect, except any such Tax that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are maintained in accordance with generally accepted accounting principles.
5.10 Use of Proceeds
The Borrowers will use the proceeds of all Borrowings obtained under the Credit Facility only for the purposes set
out in Section 2.1.2 of this Agreement.
ARTICLE 6
NEGATIVE COVENANTS
From (and including) the Effective Date until the termination or expiry of the Credit
Facility and the payment in full of all Obligations owing hereunder, the Borrowers covenant and agree with the Lender that:
6.1 Fundamental Changes
None of the Borrowers (in each case, a "Predecessor") will enter into any transaction whereby all or
substantially all of its assets would become the property of any other Person (a "Successor") whether by way of reorganization, reconstruction, consolidation, amalgamation, merger, transfer, sale or otherwise, unless:
(a) no Default or Event of Default will have occurred and remain outstanding and such transaction
will not result in the occurrence of any Default or Event of Default; and
(b) prior to or
contemporaneously with the consummation of such transaction the Predecessor and/or the Successor have executed such instruments and delivered such legal opinions as the Lender reasonably requests in forms acceptable to the Lender acting reasonably,
and done such things as are necessary or advisable to establish that upon the consummation of such transaction;
(i) the Successor will have assumed all the covenants and obligations of the Predecessor under this Agreement; and
(ii) this Agreement will be a valid and binding obligation of the Successor entitling the
Lender, as against the Successor, to exercise all its rights under its Agreement;
(whereupon such Successor will become a Borrower hereunder, entitled to exercise every right and power of the Predecessor hereunder with the same
effect as if such Successor had been named as a Borrower hereunder, whereupon the Predecessor will be released from all of its covenants and the Obligations).
The foregoing will not apply to any transfer of any
assets by any Borrower to any other Borrower or any Subsidiary.
ARTICLE 7
EVENTS OF DEFAULT
7.1 Events of Default
If any of the following events ("Events of Default") occurs:
(a) the Borrowers fail to pay the Obligations (or any part thereof) on the Maturity Date;
(b) the Borrowers fail to pay other amount owing hereunder when due and such failure continues
unremedied for a period of five Business Days after written notice thereof from the Lender;
(c) any representation or warranty made or deemed made by or on behalf of any Borrower hereunder
will prove to have been incorrect in any material respect when made or deemed to be made and if such incorrect representation or warranty is not remedied within 15 Business Days after notice thereof from the Lender to the Borrowers;
(d) any Borrower fails to observe or perform any other covenant, condition or agreement contained
in this Agreement and such failure continues unremedied for a period of 20 Business Days after written notice thereof from the Lender;
(e) any Borrower:
(i) becomes insolvent, or generally does not or becomes unable to pay its debts or meet its
liabilities as the same become due, or admits in writing its inability to pay its debts generally, or declares any general moratorium on its indebtedness, or proposes a compromise or arrangement between it and any class of its creditors;
(ii) commits an act of bankruptcy under the Bankruptcy and Insolvency Act (Canada), the
United States Bankruptcy Code or under analogous foreign law, or makes an assignment of its property for the general benefit of its creditors under such Act or under analogous foreign law, or makes a proposal (or files a notice of its
intention to do so) under such Act or under analogous foreign law;
(iii) institutes any
proceeding seeking to adjudicate it an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of
creditors), or composition of it or its debts or any other relief, under any federal, provincial or foreign Law in effect on the Effective Date or thereafter arising relating to bankruptcy, winding-up, insolvency, reorganization, receivership, plans
of arrangement or relief or protection of debtors (including the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada), the United States Bankruptcy Code and any applicable corporations
legislation) or at common law or in equity, or files an answer admitting the material allegations of a petition filed against it in any such proceeding;
(iv) applies for the appointment of, or the taking of possession by, a receiver, interim
receiver, receiver/manager, sequestrator, conservator, custodian, administrator, trustee, liquidator or other similar official for it or any substantial part of its property; or
(v) threatens to do any of the foregoing, or takes any action, corporate or otherwise, to
approve, effect, consent to or authorize any of the actions described in this Section 7.1(e) or in Section 7.1(f), or otherwise acts in furtherance thereof or fails to act in a timely and appropriate manner in defence thereof;
(f) any petition, proposal or notice of intention to file a proposal is filed, application made
or other proceeding instituted against or in respect of any Borrower:
(i) seeking to
adjudicate it an insolvent;
(ii) seeking a receiving order against it under the
Bankruptcy and Insolvency Act (Canada), the United States Bankruptcy Code or under analogous foreign law;
(iii) seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally
(or any class of creditors), or composition of it or its debts or any other relief under any federal, provincial or foreign Law in effect on the Effective Date or thereafter arising relating to bankruptcy, winding-up, insolvency, reorganization,
receivership, plans of arrangement or relief or protection of debtors (including the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada), the United States Bankruptcy Code and any applicable
corporations legislation) or at common law or in equity; or
(iv) seeking the entry of an
order for relief or the appointment of, or the taking of possession by, a receiver, interim receiver, receiver/manager, sequestrator, conservator, custodian, administrator, trustee, liquidator or other similar official for it or any substantial part
of its property;
and such petition, application or proceeding continues undismissed, or unstayed and in effect, for a period of 60 days after the institution thereof; provided that if an order, decree or judgment is
granted or entered (whether or not entered or subject to appeal) against the applicable Borrower thereunder in the interim, such grace period will cease to apply, and provided further that if such Borrower files an answer admitting the material
allegations of a petition filed against it in any such proceeding, such grace period will cease to apply;
(g) any other event occurs which, under the Laws of any applicable jurisdiction, has an effect
equivalent to any of the events referred to in either of Sections 7.1(e) or (f) and, if the event is equivalent to the event referred to in (f) (subject to the same provisos), the 60 day grace period will apply as set out in (f);
(h) any one or more judgments for the payment of borrowed money in an aggregate amount in excess
of the Specified Threshold Amount is rendered against any Borrower and such Borrower has not (i) provided for the discharge of such judgment in accordance with its terms within 30 days from the date of entry thereof, or (ii) procured a stay of
execution thereof within 30 days from the date of entry thereof and within such period, or such longer period during which execution of such judgment continues to be stayed, appealed such judgment and caused the execution thereof to be stayed during
such appeal; provided that if enforcement and/or realization proceedings or similar process are lawfully commenced in respect thereof in the interim, such grace period will cease to apply;
(i) any property of any Borrower having a fair market value in excess of the Specified
Threshold Amount is seized (including by way of execution, attachment, garnishment, levy or distraint) or any lien thereon securing indebtedness is enforced against such property, or such property has become subject to any charging order or
equitable execution of a Governmental Authority, or any writ of execution or distress warrant exists in respect of such property, or any sheriff or other Person becomes lawfully entitled by operation of law or otherwise to seize or distrain upon
such property, and in any case such seizure, enforcement, execution, attachment, garnishment, distraint, charging order or equitable execution or other seizure or right, continues in effect and is not released or discharged for more than 30
days or such longer period during which entitlement to the use of such property continues with the affected Borrower and the affected Borrower is contesting the same in good faith and by appropriate proceedings, provided that if the property is
removed form the use of the affected Borrower or is sold in the interim, such grace period shall cease to apply;
(j) any Borrower shall fail to pay any principal or premium or interest in respect of any indebtedness for borrowed money in an aggregate amount exceeding the Specified
Threshold Amount when the same becomes due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or
instrument relating to such indebtedness for borrowed money; or
(k) this Agreement, at any time for any reason, terminates or ceases to be in full
force and effect and a legally valid, binding and enforceable obligation of the Borrowers is declared to be void or voidable or is repudiated, or the validity, binding effect, legality or enforceability hereof or thereof is at any time contested by
any Borrower, or any Borrower denies that it has any or any further liability or obligation hereunder or thereunder, or any action or proceeding is commenced to enjoin or restrain the performance or observance by the Borrowers of any material terms
hereof or thereof or to question the validity or enforceability hereof or thereof,
then, and in every such event (other than an event with respect to a Borrower described in clause (e), (f) or (g) above), and at
any time thereafter during the continuance of such event or any other such event, the Lender may, by notice to the Borrowers, take either or both of the following actions, at the same or different times: (i) terminate the availability of the
Credit Facility, and thereupon the Credit Facility will terminate immediately, and (ii) declare all Loans and Obligations then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable
may thereafter be declared to be due and payable), and thereupon the principal of all Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrowers accrued hereunder, will become
due and payable immediately, without presentment, demand, protest or other notice of any kind except as set forth earlier in this paragraph, all of which are hereby waived by the Borrowers.
7.2 Legal Proceedings
If any Event of Default
occurs, the Lender may, in its discretion, exercise any right or recourse and/or proceed by any action, suit, remedy or proceeding against the Borrowers authorized or permitted by law for the recovery of all the indebtedness and liabilities of the
Borrowers to the Lender and proceed to exercise any and all rights and remedies hereunder, and no such remedy for the enforcement of the rights of the Lender will be exclusive of or dependent on any other remedy but any one or more of such remedies
may from time to time be exercised independently or in combination.
7.3 Non-Merger
The taking of a judgment or
judgments or any other action or dealing whatsoever by the Lender in respect of this Agreement will not operate as a merger of any indebtedness of any Borrower to the Lender or in any way suspend payment or affect or prejudice the rights, remedies
and powers, legal or equitable, which the Lender may have in connection with such liabilities and the surrender, cancellation or any other dealings with any security for such liabilities will not release or affect the liability of any Borrower
hereunder.
ARTICLE 8
SUBORDINATION AND DEPOSITS
8.1 Subordination
The Lender hereby agrees as
follows:
(a) the payment of the Obligations is subordinated and, subject to the right of
payment to the extent and in the manner set forth in paragraph (b) below, postponed to the repayment in full of all other indebtedness of the Borrowers (or any of them) and all liabilities and obligations of the Borrowers (or any of them) to
any holder of such indebtedness of any kind, now or hereafter existing, direct or indirect, absolute or contingent, joint or several, whether as principal or surety and whether under a credit agreement, promissory note, guarantee or otherwise
(collectively, the "Senior Debt"), as such Senior Debt may be modified renewed, extended, increased or modified in any way from time to time and including all principal, interest, fees, expenses and other amounts owing from time to time in
respect of such Senior Debt;
(b) the Lender may not receive any payment in respect of
any Obligations unless, at the time of such payment, all amounts then due and owing under or in respect of the Senior Debt have been paid in full and no default exists in respect of the Senior Debt or any document evidencing, securing or relating to
the Senior Debt;
(c) the Lender shall not accept any mortgage, pledge, hypothec or other
charge, lien or encumbrance on any property, asset or undertaking of any Borrower in respect of the Obligations;
(d) the Lender shall not initiate or prosecute any claim, action or other proceeding challenging the enforceability of any Senior Debt or object to any borrowing under any Senior
Debt;
(e) the Lender agrees, at the request of any holder of Senior Debt, to execute and
deliver to such holder a confirmation of the subordination provided for herein in the form attached as Exhibit C, but without prejudice to the rights of any holder of Senior Debt that does not request or receive such a confirmation; and
(f) the Borrowers are not restricted from incurring indebtedness or charging their property and
undertaking to secure any indebtedness or other obligations.
8.2 Deposits
Until the Maturity Date, the Lender or its nominee may from time to time request to place amounts on deposit with a Borrower or its nominee. If a Borrower or its nominee agrees to accept such a deposit, then the
parties agree that the terms set out in Exhibit B will govern such deposit and the parties to such arrangement will execute a form of Deposit Record substantially in the form of Exhibit B.
ARTICLE
9
MISCELLANEOUS
9.1 Notices
Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein will be in writing and will be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by email in each case to the addressee, as follows:
9.1.1 if to the Borrowers:
Brookfield Place
181 Bay Street, Suite 300
Toronto, Ontario M5J 2T3
Attention: Chloe
Berry
Email: chloe.berry@brookfield.com
and
73 Front Street
Fifth Floor
Hamilton, HM 12 Bermuda
Attention: Jane
Sheere
Email: jane.sheere@brookfield.com
9.1.2 if to the Lender:
Brookfield Place
181 Bay Street, Suite 300
Toronto, Ontario M5J 2T3
Attention: Chloe
Berry
Email: chloe.berry@brookfield.com
and
73 Front Street
Fifth Floor
Hamilton, HM 12 Bermuda
Attention: Jane
Sheere
Email: jane.sheere@brookfield.com
Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement will be deemed to have been given on the date of receipt.
9.2 Waivers
No failure or delay by the Lender
in exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of the Lender hereunder are cumulative and are not exclusive of any rights or remedies that it would otherwise have. Any waiver of any
provision of this Agreement or consent to any departure by the Borrowers therefrom will be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of any Loan
will not be construed as a waiver of any Default, regardless of whether the Lender may have had notice or knowledge of such Default at the time.
9.3 Expenses; Indemnity
9.3.1 The Borrowers will pay all reasonable out-of-pocket expenses incurred by the Lender,
including the reasonable fees, charges and disbursements of external counsel for the Lender in connection with the negotiation and preparation of this Agreement (whether or not the transactions contemplated hereby or thereby will be consummated),
the management and administration of Loans and this Agreement (whether or not any Borrowings are made hereunder), any amendments, modifications or waivers of the provisions of this Agreement, and the collection, enforcement or protection of the
Lender's rights in connection with this Agreement, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Credit Facility and the Loans.
9.3.2 Each Borrower will indemnify the Lender, its directors, officers and employees (each such
Person including the directors, officers and employees herein referred to as an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, cost recovery actions, damages, expenses and liabilities of whatsoever
nature or kind asserted by third parties, and all reasonable out-of-pocket expenses to which any Indemnitee may become subject arising out of or in connection with (a) the execution or delivery by the Lender of this Agreement or any agreement or
instrument contemplated hereby, the performance by the Lender of its obligations hereunder and the consummation of the transactions contemplated hereunder, (b) any Loan or any actual or proposed use of the proceeds therefrom, (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto, (d) any other aspect of this Agreement, and
(e) the enforcement of any Indemnitee's rights hereunder and any related investigation, defence, preparation of defence, litigation and enquiries; provided that such indemnity will not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, wilful misconduct or wilful material breach of this
Agreement by such Indemnitee.
9.4 Currency Indemnity
If, for the purposes of
obtaining judgment in any court in any jurisdiction with respect to this Agreement or any other Financing Document, it becomes necessary to convert into the currency of such jurisdiction (the "Judgment Currency") any amount due under this
Agreement or under any other Financing Document in any currency other than the Judgment Currency (the "Currency Due"), then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is
given. For this purpose "rate of exchange" means the rate at which the Lender is able, on the relevant date, to purchase the Currency Due with the Judgment Currency in accordance with its normal practice. In the event that there is a
change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given and the date of receipt by the Lender of the amount due, the Borrowers will, on the date of receipt by the Lender, pay such additional
amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received by the Lender on such date is the amount in the Judgment Currency which when converted at the rate of exchange
prevailing on the date of receipt by the Lender is the amount then due under this Agreement or such other Financing Document in the Currency Due. If the amount of the Currency Due which the Lender is so able to purchase is less than the amount
of the Currency Due originally due to it, the Borrowers shall indemnify and save the Lender harmless from and against all loss or damage arising as a result of such deficiency. This indemnity shall constitute an obligation separate and
independent from the other obligations contained in this Agreement and the other Financing Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Lender from time to time
and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any other Financing Document or under any judgment or order.
9.5 Successors and Assigns and Additions of Lenders
9.5.1 The provisions of this Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that no Borrower may, without the prior written consent of the Lender, assign or otherwise transfer any of its rights or obligations hereunder to any Person other
than a Successor pursuant to a transaction that is completed in compliance with Section 6.1.
9.5.2 The Lender may assign to one or more assignees all or any portion of its rights and
obligations under this Agreement at any time upon giving the Borrowers written notice thereof.
9.5.3 Any Lender may at any time and from time to time add any Person as a Lender hereunder by
delivering written notice of such designation to the Borrowers. From and after the delivery of any such written notice by any Lender, each Person that is so designated as a Lender hereunder will be entitled to all rights and benefits of this
Agreement and be jointly and severally liable with each other Lender hereunder for the obligations of the Lenders hereunder. The Lenders may designate and appoint one or more of the Lenders or any other Person as their agents under this
Agreement for the purposes of receiving all notices and requests to be issued, giving all consents and approvals and receiving all payments to be made to the Lenders hereunder and the Borrowers will be entitled to rely on any such designation and
appointment and will be deemed to have discharged their obligations hereunder if such notices and requests are delivered, consents and approvals are obtained and payments are made in accordance with such designations and appointments.
9.6 Survival
All covenants, agreements,
representations and warranties made by the Borrowers herein will be considered to have been relied upon by the Lender and will survive the execution and delivery of this Agreement and the making of any Loans, and all such covenants and agreements
will continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Credit Facility has not expired or been
terminated other than these amounts claimed or capable of being claimed under sections of this Agreement which by the terms of this Agreement, survive termination of this Agreement. Sections 2.9, 9.3 and 9.6 will survive and remain in full
force and effect, regardless of the repayment of the Obligations or the expiration or termination of the Credit Facility or this Agreement or any provision hereof.
9.7 Counterparts; Integration; Effectiveness
This Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which will constitute an original, but all of which when taken together will constitute a single contract. This Agreement and any separate letter agreements with respect to fees payable to the Lender,
constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement will become
effective when it will have been executed by the Lender and when the Lender will have received the counterpart hereof which, when taken together, bears the Borrowers' signatures, and thereafter will be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an executed original counterpart of a signature page of this Agreement by facsimile will be as effective as delivery of a manually executed original counterpart of this
Agreement.
9.8 Severability
Any provision
of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction will not invalidate such provision in any other jurisdiction.
9.9 Right of Set Off
If an Event of Default
will have occurred and be continuing, the Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at
any time held and other obligations at any time owing by the Lender to or for the credit or the account of any Borrower against any of and all of the obligations of the Borrowers under this Agreement held by the Lender, irrespective of whether or
not the Lender will have made any demand under this Agreement and although such obligations may be unmatured. The rights of the Lender under this section are in addition to other rights and remedies (including other rights of set off) which
the Lender may have.
9.10 Governing Law; Jurisdiction
This Agreement
will be construed in accordance with and governed by the Laws of the Province of Ontario. Each of the Borrowers hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Courts of the
Province of Ontario.
9.11 Waiver of Jury Trial
Each party hereto waives, to the fullest extent permitted by Applicable Law, any right it may have to trial by jury in any legal proceeding directly or indirectly arising out of or relating to this
Agreement.
9.12 Headings
Article and
Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and will not affect the construction of, or be taken into consideration in interpreting, this Agreement.
9.13 Limited Recourse
Recourse under this
Agreement against each Borrower will be limited to the property and assets of such Borrower, and this Agreement will not be personally binding upon, and resort will not be had to, nor will recourse or satisfaction be sought from the private property
of, any of the limited partners, unitholders or securityholders of such Borrower (unless such Person is also a Borrower hereunder).
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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BUUK BERMUDA HOLDCO LIMITED
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Per:
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/s/ Jane Sheere
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Name: Jane Sheere
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Title: Secretary
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BIP BERMUDA HOLDINGS I LIMITED
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Per:
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/s/ Jane Sheere
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Name: Jane Sheere
Title: Secretary
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EXHIBIT A
FORM OF BORROWING REQUEST
Date:
The undersigned, BUUK Bermuda Holdco Limited (a "Borrower"), refers to the Credit
Agreement dated as of March 31, 2020, between the undersigned, as Borrower, and BIP Bermuda Holdings I Limited, as Lender (the "Credit Agreement"). Capitalized terms used herein and not otherwise defined herein will have the
meanings assigned to such terms in the Credit Agreement.
The Borrowers hereby gives you notice pursuant to Sections 2.3 of the Credit Agreement that it requests a Borrowing under the Credit Agreement as
follows:
(A) Amount and Interest Period: a Loan in the amount of $ and with an Interest Period of months.
(B) Date of Borrowing:
(C) Account of the Borrower to which the funds are to be disbursed:
(D) The undersigned confirms having read the provisions of the Credit Agreement which are relevant
to the furnishing of this Borrowing Request. The undersigned confirms that the Borrowers have complied with all conditions precedent for the requested Borrowing.
The Borrower hereby certifies that the
representations and warranties of the Borrowers set forth in the Credit Agreement are true and correct on and as of the date hereof as if made as of the date hereof, and that no Default or Event of Default exists.
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BUUK BERMUDA HOLDCO LIMITED
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Per:
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Name:
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Title:
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EXHIBIT
B
FORM OF DEPOSIT RECORD
FOR VALUE RECEIVED, ("Depositee"), having its principal office at , promises to pay on demand to the order of
("Depositor"), having its principal office at , the Principal Amounts (as defined below) as the Depositor may from time to time advance to the Depositee, together with interest from the date hereof at the
Applicable Interest Rate (as defined below), calculated and compounded monthly, both before and after maturity, default and judgment and until actual payment, with interest on overdue interest at the same rate.
WHEREAS, the Depositor may make deposits with the Depositee from time to time (each a "Deposit");
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
WHEN USED
HEREIN, the following capitalized terms will have the following meanings:
"Applicable Interest Rate" will mean a rate of [one month LIBOR [+ %] per annum/%
per annum], noting that such rate may be revised so as to reflect market terms prior to any deposit being made, based on the deposit rates of at least two commercial banks.
"Business Day"
means any day except a Saturday, Sunday or other day on which commercial banks in New York City or Toronto, Canada are authorized or required by law to close.
"Deposit Date" will be the
date of each advance under this Note.
"Default Rate" will be the Applicable Interest Rate plus five percent (5%) per annum.
"Deposits" mean, collectively, all Deposits advanced by the Depositor to the Depositee from time to time.
"Events of Default"
means the occurrence of any of the following, each of which will constitute an Event of Default under this Note:
i. Failure to make any payment of interest or principal on
this Note when due, or failure to pay the principal balance of this Note on demand; or
ii. Failure to pay any other amount
payable pursuant to this Note when due and payable in accordance with the provisions hereof, with such failure continuing for ten (10) Business Days after Depositor delivers written notice thereof to Depositee; or
iii. Any default in the performance of the obligations pursuant to Section 3; or
iv. Any insolvency or bankruptcy of the Depositee.
"Governmental Authority" will mean any nation or government, any federal, state, provincial, local or other political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Material Adverse Effect" will mean any event or condition that has a material adverse effect on the
ability of Depositee to repay the principal and interest of the Obligations as they become due.
"Note" means this deposit record and "Notes" means collectively, all such deposit
records evidencing Deposits advanced by the Depositor to the Depositee from time to time.
"Obligations" will mean all obligations, liabilities and indebtedness of every nature of
Depositee from time to time owing to Depositor under or in connection with this Note and the Deposits (including all Principal Amounts and all interest accrued thereon).
"Payment Dates"
will be and in each calendar year, commencing on .
"Person" will mean an individual, a corporation, a partnership, an association, a trust,
a limited liability company or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"Principal Amount" will mean,
with respect to any Deposit, the principal amount of such Deposit.
"Requirements of Law" will mean, as to any Person, the charter and by-laws or other organizational or governing
documents of such Person, and any law, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of
its property is subject.
1. The Obligations will be due and payable in lawful money of Canada as follows:
a. On each Payment Date until this Note is paid in full on demand, Depositee will pay to
Depositor all interest then accrued on each Principal Amount at the Applicable Interest Rate. Depositee may request, and Depositor may, in its sole discretion, agree that any interest payable by Depositee under this Note will continue to
accrue until such date as Depositor may agree to.
b. On demand, but in any event, no later
than , Depositee will pay to Depositor the Obligations then outstanding.
c. Amounts due on this Note will be payable, without any counterclaim, setoff or deduction
whatsoever except for any withholding taxes that the Depositee is required to withhold at law, at the office of Depositor or its agent or designee at the address set forth in the first paragraph of this Note or at such other place as Depositor or
its agent or designee may from time to time designate in writing.
d. The Depositee acknowledges
that the actual recording of amounts advanced and amounts paid on the attached grid schedule shall, in the absence of manifest error, be prima facie evidence of the same; provided that the failure of the Depositor to record the same on the
grid schedule shall not affect the obligation of the undersigned to pay or repay the amounts advanced by the Depositor, together with interest thereon at the Applicable Interest Rate.
2. In order to induce Depositor to make the Deposits, Depositee makes the following representations and warranties as of each Deposit Date. Such representations and
warranties, will survive the effectiveness of this Note, the execution and delivery hereof and the making of the Deposits.
a. Depositee is (i) duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) is duly authorized and qualified to do
business and is in good standing under the laws of each jurisdiction except where the failure to be so qualified and in good standing would not result in a Material Adverse Effect, and (iii) has all powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now conducted or as it is presently proposed to be conducted except where the failure to have the same would not result in a Material Adverse Effect.
b. Depositee has the power and authority to execute, deliver and carry out the terms and provisions
of this Note and has taken all necessary action to authorize the execution and delivery on behalf of Depositee and the performance by Depositee hereof. Depositee has duly executed and delivered this Note and this Note constitutes the legal,
valid and binding obligation of Depositee, enforceable in accordance with its terms.
c. Neither the execution, delivery or
performance by the Depositee of this Note, nor compliance by the Depositee with the terms and provisions hereof, nor the consummation of the transactions contemplated hereby, (i) will contravene any applicable provision of any material law, statute,
rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality that is binding on the Depositee or its property, or (ii) will conflict, in any material respect, with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a material default under, or result in the creation or imposition of (or the obligation to create or impose) any agreement to which the Depositee is a party or by which it or any of its assets is
bound.
3. Depositee covenants and agrees that so long as the Deposits are outstanding and until payment in full of
all of the Obligations, unless Depositor will otherwise give prior written consent:
a. Depositee will at all times maintain its existence and preserve and keep in full force and
effect its rights and franchises material to its businesses, except where the loss or termination of such rights and franchises would not have a Material Adverse Effect;
b. Depositee will remain qualified to do business and maintain its good standing in each jurisdiction in which the nature of its business and the ownership of its property
requires it to be so qualified and in good standing, except where noncompliance would not have a Material Adverse Effect; and
c. Depositee will comply with all Requirements of Law, except where noncompliance would not have a Material Adverse Effect.
4. Depositee may prepay the Principal Amount of any Deposit in full or in part at any time [together with all
interest accrued on such prepaid amount].
5. If the Depositee defaults in the payment of any payment that is due
on any Payment Date (or such later date as the Depositor has agreed pursuant to section 1(a) that such installment is due), then the Depositee will pay to Depositor a late payment charge in an amount equal to five percent (5%) of the amount of the
installment not paid as aforesaid. Said late charge payments, if payable, will be payable without notice or demand by the Depositor, and are independent of and have no effect upon the rights of the Depositor under paragraph 1 above.
6. This Note will be governed by and construed in accordance with the laws of the Province of Ontario.
7. The Depositee will execute and acknowledge (or cause to be executed and acknowledged) and deliver to the Depositor
all documents, and take all actions, reasonably required by the Depositor from time to time to confirm the rights created or now or hereafter intended to be created under this Note, to protect and further the validity and enforceability of this
Note, or otherwise carry out the purposes of the Note and the transactions contemplated hereunder; provided, however, that no such further actions, assurances and confirmations will increase the Depositee's obligations under this
Note.
8. No modification, amendment, extension, discharge, termination or waiver (a "Modification") of any provision
of this Note, nor consent to any departure by the Depositee therefrom, will in any event be effective unless the same will be in a writing signed by the Depositor, and then such waiver or consent will be effective only in the specific instance, and
for the purpose, for which given. Except as otherwise expressly agreed to by the Depositor in writing, no Modification will entitle the Depositee to any other or future Modification, whether in the same, similar or other circumstances.
The Depositor does not hereby agree to, nor does the Depositor hereby commit itself to, enter into any Modification.
IN WITNESS WHEREOF, Depositee has caused this Note to be executed and delivered as of the day
and year first above written.
By:
Name:
Title:
Currency: ________________
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DATE
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LOAN NUMBER
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ADVANCES
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PRINCIPAL PAYMENTS
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UNPAID BALANCE
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NOTATION
MADE BY
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1
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B-1
EXHIBIT C
FORM OF CONFIRMATION OF SUBORDINATION
TO: and its successors and assigns (the "Senior Lender")
RE: Credit agreement dated as of between (the "Borrower") and the
Senior Lender, as amended, modified or supplemented from time to time (the "Senior Credit Agreement")
AND RE: Credit Agreement dated as of March 31, 2020 between BUUK Bermuda Holdco Limited, as borrower, and BIP Bermuda Holdings I Limited, as lender (the "Subordinate
Lender"), as amended, modified or supplemented from time to time (the "Subordinate Credit Agreement")
Pursuant to section 8.1 of the Subordinate Credit Agreement, the undersigned confirms in favour of the
Senior Lender that (i) all indebtedness, liabilities and obligations of the Borrower owing from time to time under or pursuant to the Senior Credit Agreement constitutes "Senior Debt" for all purposes of the Subordinate Credit Agreement, and
(ii) the Senior Lender is entitled to all the rights and benefits of section 8.1 of the Subordinate Credit Agreement in respect of the Senior Debt owing to it from time to time.
All terms that are capitalized but
not defined herein have the meanings attributed to such terms in the Subordinate Credit Agreement.
This confirmation is binding upon the undersigned and its successors and assigns, and enures to the benefit of the
Senior Lender and its respective successors and assigns.
DATED this day of .
[Signature Page Follows]
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- 2-
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BIP BERMUDA HOLDINGS I LIMITED
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Per:
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Name:
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Title:
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Per:
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Name:
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Title:
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SUBORDINATE CREDIT AGREEMENT
between
BIP BERMUDA HOLDINGS I LIMITED
as Borrower
and
BUUK BERMUDA HOLDCO LIMITED
as Lender
Effective as of March 31, 2020
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS
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1
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1.1 Defined Terms
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1
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1.2 Terms Generally
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9
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1.3 Accounting Terms; GAAP
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9
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1.4 Time
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9
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1.5 Borrowers Jointly and Severally Liable
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9
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1.6 Borrowers Bound by Delivered Certificates and Notices
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10
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1.7 Currency Equivalents
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10
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1.8 Amount of Credit
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10
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1.9 Divisions
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10
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1.10 Schedules
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10
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ARTICLE 2 THE CREDIT FACILITY
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11
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2.1 Establishment of Credit Facility
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11
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2.2 Loans and Borrowings
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11
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2.3 Requests for Borrowings
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11
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2.4 Interest
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12
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2.5 Evidence of Debt
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14
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2.6 Termination and Reduction by Lender of Credit Commitment
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14
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2.7 Mandatory Repayments of Excess Drawn Amounts
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15
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2.8 Voluntary Prepayments and Cancellation
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15
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2.9 Breakage Costs
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15
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2.10 Alternate Rate of Interest
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15
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2.11 Increased Costs; Illegality
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16
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2.12 Payments Generally
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17
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2.13 Addition of Borrowers
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17
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2.14 Withholding Tax.
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17
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES
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18
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3.1 Organization; Powers
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18
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3.2 Authorization; Enforceability
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19
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3.3 Governmental Approvals; No Conflicts
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19
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3.4 Financial Information
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19
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3.5 Litigation
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19
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3.6 Compliance with Laws and Agreements
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19
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3.7 Taxes
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20
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3.8 Pension Plans
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20
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3.9 No Order or Judgments
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20
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3.10 Insurance
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20
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3.11 Solvency
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20
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3.12 Environmental Matters
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20
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3.13 Money Laundering Laws
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21
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3.14 Office of Foreign Assets Control
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21
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3.15 Survival of Representations and Warranties
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21
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3.16 Deemed Repetition
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21
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ARTICLE 4 CONDITIONS PRECEDENT TO LOANS
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21
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4.1 Effective Date
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21
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4.2 Each Borrowing
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22
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ARTICLE 5 AFFIRMATIVE COVENANTS
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22
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5.1 Financial Statements and Other Information
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22
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5.2 Existence; Conduct of Business
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23
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5.3 Timely Payment
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23
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5.4 Books and Records
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23
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5.5 Compliance with Laws
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23
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5.6 Insurance
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23
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5.7 Operation of Business
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23
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5.8 Maintenance of Assets
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23
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5.9 Payment of Taxes
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24
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5.10 Use of Proceeds
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24
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ARTICLE 6 NEGATIVE COVENANTS
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24
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6.1 Fundamental Changes
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24
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ARTICLE 7 EVENTS OF DEFAULT
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25
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7.1 Events of Default
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25
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7.2 Legal Proceedings
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28
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7.3 Non-Merger
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28
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ARTICLE 8 SUBORDINATION AND DEPOSITS
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28
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8.1 Subordination
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28
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8.2 Deposits
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29
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ARTICLE 9 MISCELLANEOUS
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29
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9.1 Notices
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29
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9.2 Waivers
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31
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9.3 Expenses; Indemnity
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31
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9.4 Currency Indemnity
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32
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9.5 Successors and Assigns and Additions of Lenders
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32
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9.6 Survival
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33
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9.7 Counterparts; Integration; Effectiveness
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33
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9.8 Severability
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33
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9.9 Right of Set Off
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33
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9.10 Governing Law; Jurisdiction
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34
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9.11 Waiver of Jury Trial
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34
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9.12 Headings
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34
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9.13 Limited Recourse
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34
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- ii-
Exhibit A FORM OF BORROWING REQUEST
Exhibit B FORM OF DEPOSIT RECORD
Exhibit C FORM OF
CONFIRMATION OF SUBORDINATION
- iii-
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is effective as of March 31, 2020 and is entered into between BIP Bermuda Holdings I Limited, as the initial Borrower, such Persons as become Borrowers hereunder from time to time, and
BUUK Bermuda Holdco Limited, as Lender.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms
As used in this Agreement, the
following terms have the meanings specified below:
"Agreement" means this agreement and all schedules attached hereto, as amended, restated or supplemented from time to time.
"Applicable Law" means, in respect of any Person, property, transaction, event or other matter, as applicable, all Laws relating or applicable to such Person, property, transaction, event or
matter.
"Applicable Margin" means, with respect to any Loan, the applicable rate per annum, expressed as a percentage, set forth in the relevant column and row of the table below as
adjusted pursuant to Section 2.4.1:
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Type of Loan
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Applicable Margin
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Canadian Prime Rate Loan
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0.80%
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U.S. Base Rate Loan
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0.80%
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CDOR Loan
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1.80%
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LIBOR Loan
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1.80%
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"Authorization" means, with respect to any Person, any authorization, order, permit, approval, grant, licence, consent, franchise, privilege, certificate, judgment, writ, injunction, award,
determination, direction, decree, by-law, rule or regulation of any Governmental Authority having jurisdiction over such Person and legally binding on such Person.
"Available Amount"
means the amount of the Credit Facility as set out in Section 2.1 as reduced from time to time in accordance with the provisions of this Agreement.
"Borrowers" means, collectively, BIP
Bermuda Holdings I Limited and each Person that agrees to be bound hereunder as a Borrower hereunder pursuant to Section 2.13.
"Borrowing" means any availment of the Credit Facility and
includes a rollover or conversion of any outstanding Loan.
"Borrowing Request" means a request by any Borrower for a Borrowing pursuant to Section 2.3.
"Business Day" means any day
that is not a Saturday, Sunday or other day on which commercial banks in Toronto, Ontario or New York, New York are authorized or required by Applicable Law to remain closed and, in the case of any LIBOR Loan, is also not a day on which commercial
banks in London, England are authorized or required by Applicable Law to remain closed.
"Canadian Dollars" and "Cdn$" refer to lawful money of Canada.
"Canadian Prime Borrowing" means a Borrowing comprised of one or more Canadian Prime Rate Loans.
"Canadian Prime Rate Loan" means
a Loan denominated in Canadian Dollars which bears interest at a rate based upon the Canadian Prime Rate.
"Canadian Prime Rate" means, on any day, the annual rate of interest equal to the
greater of (a) the annual rate of interest announced by the Canadian Reference Lender and in effect as its prime rate at its principal office in Toronto, Ontario on such day for determining interest rates on Canadian Dollar-denominated commercial
loans in Canada, and (b) the annual rate of interest equal to the sum of the one-month CDOR in effect on such day plus 1.0% per annum.
"Canadian Reference Lender" means such bank that is
listed on Schedule I of the Bank Act (Canada) that is selected by the Lender by giving written notice of thereof to the Borrowers.
"CDOR" means (a) with respect to a CDOR Loan, the
rate per annum equal to the average per annum rate applicable to Canadian Dollar bankers' acceptances having an identical or comparable term as the proposed CDOR Loan displayed and identified as such on the "Reuters Screen CDOR Page" (as defined in
the International Swaps and Derivatives Association, Inc. 2000 definitions, as modified and amended from time to time), rounded to the nearest 1/100th of 1% (with .005% being rounded up), at approximately 10:00 a.m. (Toronto time) on the first day
of the Interest Period for such CDOR Loan, with a term equivalent to the Interest Period of such CDOR Loan or if such Interest Period is not equal to a number of months, with a term equivalent to the number of months closest to such Interest Period,
plus 0.10%; provided that if such rate does not appear on the Reuters Screen CDOR Page on such date as contemplated, then the CDOR on such date shall be calculated as the rate for the term referred to above applicable to Canadian Dollar
bankers' acceptances quoted by the Canadian Reference Lender as of 10:00 a.m. (Toronto time) on such date or, if such date is not a Business Day, then on the immediately preceding Business Day, plus 0.10%; provided further that the CDOR shall
at no times be less than 0%. If no CDOR is available for a particular Interest Period but CDORs are available for maturities both longer and shorter than such Interest Period, then the CDOR for such Interest Period shall be the CDOR
Interpolated Rate plus 0.10%.
"CDOR Borrowing" means a Borrowing comprised of one or more CDOR Loans.
"CDOR Interpolated Rate" means, in relation to any CDOR Loan and its Interest Period, a rate per annum determined by the Lender (which determination shall be conclusive and binding absent
manifest error) to be equal to the rate that results from interpolating on a linear basis between (a) the applicable CDOR for the longest period for which a CDOR is available that is shorter than such Interest Period and (b) the applicable CDOR for
the shortest period for which a CDOR is available that is longer than such Interest Period, in each case as of 11:00 a.m., Toronto time on the day two Business Days prior to the first day of such Interest Period; provided that the Interpolated Rate
shall at no times be less than 0%.
"CDOR Loan" means a Loan denominated in Canadian Dollars which bears interest at a rate based upon CDOR.
"Change in Control" means the acquisition by any Person other than Brookfield Asset Management Inc. or its Affiliates (or any combination thereof) of Control of any Borrower.
"Change in Law" means (a) the adoption of any new Law after the date of this Agreement, (b) any change in any existing Law or in the official interpretation or application thereof by any
Governmental Authority after the date of this Agreement, or (c) compliance by the Lender or any of its lenders with any request, guideline or directive (whether or not having the force of law, but in the case of a request, guideline or directive not
having the force of law, being a request, guideline or directive with which Persons customarily, and are expected by the relevant Governmental Authority to, comply and nevertheless considered to be binding on a Person or such Person's property) of
any Governmental Authority made or issued after the date of this Agreement.
"Control" and similar expressions mean a relationship between two Persons wherein one of such Persons has the
power, through the ownership of Equity Securities, by contract or otherwise, to directly or indirectly direct the management and policies of the other of such Persons, and includes, without limitation: (a) in the case of a corporation or a trust,
the ownership, either directly or indirectly through one or more Persons, of Equity Securities of such corporation or trust carrying more than 50% of the votes that may be cast to elect the directors or trustees of such corporation or trust or the
Control of the corporate trustee of such trust, either under all circumstances or under some circumstances that have occurred and are continuing, (other than Equity Securities held as collateral for a bona fide debt where the holder thereof
is not entitled to exercise the voting rights attached thereto unless a default has occurred), provided that such votes, if exercised, are sufficient to elect a majority of the directors or trustees of such corporation or trust or corporate trustee;
and (b) in the case of a general partnership or limited partnership, the power, through the ownership of Equity Securities, by contract or otherwise, to act as the managing partner appointed in respect of such general partnership or the general
partner appointed in respect of such limited partnership, or to otherwise Control such managing partner or general partner, as applicable.
"Credit Facility" means the revolving credit
facility established pursuant to Section 2.1.1.
"Default" means any event or condition which constitutes an Event of Default or which, upon notice, lapse of time or both, would, unless cured or waived, become an Event of Default.
"Distribution" means, with respect to any Person: (a) the retirement, redemption, retraction, purchase or other acquisition of any Equity Securities of such Person for cash or other property
of such Person; (b) the declaration or payment of any dividend, return of capital or other distribution (in cash or other property of such Person) of, on or in respect of, any Equity Securities of such Person; or (c) any other payment or
distribution (in cash or other property of such Person) of, on or in respect of any Equity Securities of such Person.
"Dollar Amount" means at any time with respect to outstanding Loans
under the Credit Facility, the aggregate of (a) the amount in Dollars of all Loans that are denominated in Dollars, and (b) the Dollar Equivalent at such time of all Loans that are denominated in Canadian Dollars.
"Dollar Equivalent" means, at the date of determination, the amount of Dollars that the Lender could purchase, in accordance with its normal practice, with a specified amount of Canadian
Dollars based on the Exchange Rate on such date.
"Dollars" and "$" refer to lawful money of the United States unless otherwise indicated.
"Effective Date" means March 31, 2020.
"Environmental Laws" means all applicable federal, provincial, local or foreign laws,
rules, regulations, codes, ordinances, orders, decrees, judgements, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, having the force of law and relating to the environment, health and
safety, or health protection, including the generation, use, handling, collection, treatment, storage, transportation, recovery, recycling, release, threatened release or disposal of any hazardous or regulated material.
"Equity Securities" means, with respect to any Person, any and all shares, units, interests, participations, rights in, or other equivalents (however designated and whether voting and
non-voting) of, such Person's capital, whether outstanding on the date hereof or issued after the date hereof, including without limitation any interest in a partnership, limited partnership or other similar Person and any unit or beneficial
interest in a trust, and any and all rights, warrants, options or other rights exchangeable for or convertible into any of the foregoing.
"Event of Default" has the meaning specified in
Section 7.1.
"Exchange Rate" means, on any day, the rate at which Canadian Dollars may be exchanged into Dollars as set forth at approximately 11:00 a.m. New York City time on such date
on the relevant Reuters screen for Canadian Dollars; provided that if such rate does not appear on any Reuters screen on any date, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange
rates as may be reasonably selected by the Lender.
"FATCA" means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to
comply with) and any current or future regulations or official interpretations thereof.
"Federal Funds (Effective) Rate" means, for any period, a fluctuating rate of interest per annum
equal for each day during such period to (a) the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or (b) if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the
Lender from three federal funds brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles in Canada or the United States in effect from time to
time which, for clarity, will include IFRS.
"Governmental Authority" means the Government of Canada or the United States, any other nation or any political subdivision thereof, whether
provincial, state, territorial or local, and any agency, authority, instrumentality, regulatory body, court or other ether entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government.
"Hostile Acquisition" means a proposed acquisition by any Borrower or any Subsidiary in circumstances in which the Person subject to such acquisition will not have, as of
the date of the acquisition notice in respect of such acquisition, evidenced its agreement or agreement in principle to such acquisition.
"IFRS" means the International Financial
Reporting Standards as issued by the International Accounting Standards Board and as in effect from time to time.
"Indemnitee" has the meaning specified in Section 9.3.2.
"Interest Payment Date" means, (a) in the case of any Canadian Prime Rate Loan or U.S. Base Rate Loan, the first Business Day of each month, and (b) in the case of any CDOR Loan or LIBOR
Loan, the last day of the Interest Period relating to such Loan, provided that if an Interest Period for any CDOR Loan or LIBOR Loan exceeds three months, then "Interest Payment Date" shall also include each date which occurs at each
three month interval during such Interest Period.
"Interest Period" means with respect to a CDOR Loan or LIBOR Loan, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or six months thereafter or such other periods thereafter as may from time to time be agreed to by the Borrower requesting such Loan and the Lender; provided that (a)
if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the immediately succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, and (c) no Interest Period shall extend beyond the Maturity Date. For purposes hereof, the date of a Borrowing initially shall be the date
on which such Borrowing is made and, in the case of a converted or continued Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
"IRC" means the Internal Revenue Code of 1986, as amended from time to time.
"Laws" means all applicable federal, state,
provincial, municipal, foreign and international statutes, acts, codes, ordinances, decrees, treaties, rules, regulations, municipal by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders,
decisions, rulings or awards or any provisions of the foregoing, and all policies, practices, directives and guidelines in each case of any Governmental Authority and having the force of law; and "Law" means any one or more of the
foregoing.
"Lender" means, collectively, BUUK Bermuda Holdco Limited and each Person that becomes a Lender hereunder from time to time.
"LIBOR" means with respect to any LIBOR Loan denominated in Dollars, for any Interest Period, the rate for Dollar borrowings appearing on the applicable Reuters screen (or, in each case, on
any successor or substitute page of such service, or any successor to or substitute for such servicing, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Lender from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, in each case as the rate for Dollar deposits with a maturity comparable to such Interest Period; provided that if such rate is not
available at such time for any reason, then "LIBOR" with respect to such LIBOR Loan for such Interest Period will be the rate at which Dollar deposits approximately equal to the amount of such LIBOR Loan and for a maturity comparable to such
Interest Period are offered by the principal London office of a commercial bank selected by the Lender in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period; provided further that if any such rate is below zero, LIBOR shall be deemed to be zero and LIBOR shall be adjusted as applicable to reflect the Statutory Reserve Rate by multiplying the rate described
above by the Statutory Reserve Rate.
"LIBOR Borrowing" means a Borrowing comprised of one or more LIBOR Loans.
"LIBOR
Loan" means a loan denominated in Dollars which bears interest at a rate based upon LIBOR.
"Loan" means any LIBOR Loan, Canadian Prime Rate Loan, CDOR Loan or U.S. Base Rate Loan made by the Lender to a Borrower pursuant to this
Agreement.
"Material Adverse Effect" means any event, development or circumstance which has had or would have (a) a material adverse effect on the business, assets, properties, operations
or financial condition of the Borrowers and their Subsidiaries taken as a whole, or (b) a material adverse effect on the ability of the Borrowers (taken as a whole) to perform their obligations under this Agreement.
"Maturity Date" means the date that is ten (10) years from the Effective Date, unless the Agreement is terminated in accordance with Section 2.6, in which case the Maturity Date shall be the
date the Agreement is so terminated.
"Money Laundering Laws" has the meaning specified in Section 3.13.
"Obligations" means
all present and future debts, liabilities and obligations of the Borrowers to the Lender under this Agreement, whether absolute or contingent, due or to become due, existing on the Effective Date or thereafter arising, including without limitation
with respect to all Loans, and all interest and fees owing hereunder (including those that accrue after the commencing by or against any Borrower of any insolvency or similar proceeding).
"OFAC" has the meaning specified in Section 3.14.
"OFAC Lists" has the meaning specified in Section 3.14.
"Person" includes any natural person, corporation, company, limited liability company, unlimited liability company, trust, joint venture, association, incorporated organization, partnership,
limited partnership, Governmental Authority or other entity.
"Responsible Officer" means, in respect of any Person, any director or officer of such Person or the general or managing
partner of such Person.
"Senior Debt" has the meaning given to that term in Section 8.1(a).
"Specified Threshold Amount"
means, as at any date, the greater of (a) $125,000,000 and (b) an amount equal to 10% of the Borrowers' consolidated equity as at such date.
"Statutory Reserve Rate" means a
fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar reserve requirements (including any marginal,
special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Federal Reserve Board, the Financial Services Authority, the European Central Bank or other Governmental Authority for any
category of deposits or liabilities customarily used to fund loans in the applicable currency, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fee or similar requirements shall, in the case of Dollar
denominated Loans, include those imposed pursuant to Regulation D of the Federal Reserve Board. LIBOR Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without the benefit of or credit for
proration, exemptions or offsets that may be available to lenders from time to time under any Applicable Law. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any such change in any reserve, liquid asset,
fee or similar requirement.
"subsidiary" means, with respect to any Person (the "parent") at any date, any corporation, limited liability company, partnership, limited partnership, trust or other entity of which
securities or other ownership interests representing more than 50% of the combined voting stock are owned, directly or indirectly, by such Person or by any one or more subsidiaries of such Person.
"Subsidiaries" means, collectively, the subsidiaries of the Borrowers, and "Subsidiary" means any of them.
"Taxes" means
all present and future taxes, charges, fees, levies, imposts, surtaxes, duties and other assessments, including all income, sales, use, goods and services, value added, capital, capital gains, alternative, net worth, transfer, profits, withholding,
payroll, employer health, excise, real property and personal property taxes, and any other taxes, customs duties, fees, assessments, or similar charges of any nature, imposed by any Governmental Authority and whether disputed or not.
"Type", when used in reference to any Loan or Borrowing, refers to whether such Loan or Borrowing is a U.S. Base Rate Loan, Canadian Prime Rate Loan, LIBOR Loan or CDOR Loan or a U.S. Base
Rate Borrowing, Canadian Prime Borrowing, LIBOR Borrowing or CDOR Borrowing, as the case may be.
"U.S. Base Rate" means, on any day, the annual rate of interest equal to the greater
of (a) the annual rate of interest announced by a commercial Canadian bank selected by the Lender and in effect as its base rate at its principal office in Toronto, Ontario on such day for determining interest rates on Dollar demand commercial loans
in Canada, (b) the sum of the Federal Funds (Effective) Rate plus 0.50% per annum, and (c) LIBOR for Dollars for one-month term in effect on such day plus 1.00%. Any change in the U.S. Base Rate due to a change in the applicable base rate, the
Federal Funds (Effective) Rate or such LIBOR shall be effective from and including the effective date of such change in the applicable base rate, the Federal Funds (Effective) Rate or such LIBOR, respectively.
"U.S. Base Rate Borrowing" means a Borrowing comprised of one or more U.S. Base Rate Loans.
"U.S. Base Rate Loan" means a Loan
denominated in Dollars which bears interest at a rate based upon the U.S. Base Rate.
"Withholdings" has the meaning given to that term in Section 2.14.
1.2 Terms Generally
The definitions of terms
herein will apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and
"including" will be deemed to be followed by the phrase "without limitation". Unless the context requires otherwise: (a) any definition of or reference to any agreement, instrument or other document herein will be construed as referring to
such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); (b) any reference
herein to any statute or any Section thereof will, unless otherwise expressly stated, be deemed to be a reference to such statute or Section as amended, restated or re-enacted from time to time; (c) any reference herein to any Person will be
construed to include such Person's successors and permitted assigns; (d) the words "herein", "hereof" and "hereunder", and words of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision
hereof; (e) all references herein to Articles, Sections and Exhibits will be construed to refer to Articles and Sections of, and Exhibits to, this Agreement; and (f) the words "asset" and "property" will be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contractual rights.
1.3 Accounting Terms; GAAP
Except as otherwise expressly provided herein, all terms of an accounting or financial nature will be
construed in accordance with GAAP, as in effect from time to time.
1.4 Time
All time references herein will, unless
otherwise specified, be references to local time in Toronto, Ontario, Canada. Time is of the essence of this Agreement.
1.5 Borrowers Jointly and Severally Liable
Each Person that becomes a Borrower is jointly and severally liable for all Obligations,
including the obligation to pay all amounts owing hereunder to the Lender on the dates such amounts are due and on the Maturity Date. Each Borrower agrees that if any of the Obligations are not paid in full when due (whether at stated
maturity, as a mandatory repayment, by acceleration or otherwise), the Borrowers will, jointly and severally, promptly pay the same without any demand or notice whatsoever and each Borrower jointly and severally irrevocably and unconditionally
accepts joint and several liability with respect to the payment and performance of all Obligations of each other Borrower, it being the intention of the parties hereto that all Obligations be joint and several obligations of each Borrower without
preference or distinction among them. Each Borrower agrees that delivery of funds to any Borrower under this Agreement shall constitute valuable consideration and reasonably equivalent value to all Borrowers for purposes of binding them and
their assets on a joint and several basis for the Obligations hereunder. Each Borrower agrees that it will not seek payment, directly or indirectly, from any other Borrower through a claim of indemnity, contribution, subrogation or otherwise
until all Obligations have been repaid in full and the Credit Facility has terminated.
1.6 Borrowers Bound by Delivered
Certificates and Notices
Each Borrower hereby authorizes each other Borrower to deliver or submit to the Lender on behalf of such Borrower (and all other Borrowers) any Borrowing Request, notice or certificate
required or permitted to be delivered or submitted by it or on its behalf hereunder and agrees that it will be bound by, and shall be responsible for any information set forth in any such Borrowing Request, notice or certificate to the same extent
as if such Borrowing Request, notice or certificate had been executed by a Responsible Officer of such Borrower and delivered or submitted by such Borrower.
1.7 Currency Equivalents
For purposes of determining (a) whether the amount of any Borrowing, together with all other Borrowings then
outstanding or to be borrowed at the same time as such Borrowing, would exceed the Available Amount, (b) the unutilized amount of the Credit Facility, and (c) the outstanding principal amount of any Borrowing, the outstanding principal amount of any
Loan that is denominated in Canadian Dollars shall be deemed to be the Dollar Equivalent of such amount determined as of the applicable determination date.
1.8 Amount of Credit
Any reference herein to the amount of credit outstanding means, at any particular time:
(a) in the case of a Canadian Prime Rate Loan or CDOR Loan, the Dollar Equivalent of the principal
amount thereof; and
(b) in the case of a LIBOR Loan or U.S. Base Rate Loan, the principal
amount of such Loan.
1.9 Divisions
For all
purposes of this Agreement, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction's laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person; and (b) if any Person comes into existence, such new Person shall be deemed to have been
organized on the first date of its existence by the holders of its Equity Securities at such time.
1.10 Schedules
The following are the Schedules and Exhibits annexed hereto, incorporated by reference and deemed to be a part
hereof:
Exhibits: A - Borrowing Request
B - Form of Deposit Record
C - Form of Confirmation of Subordination
ARTICLE 2
THE CREDIT FACILITY
2.1 Establishment of Credit Facility
2.1.1 Subject to the terms and conditions set forth herein, the Lender hereby establishes in favour of the Borrowers a Credit Facility in the amount of $1,000,000,000 (the
"Available Amount") and commits to make Loans to the Borrowers from time to time during the period commencing on the Effective Date and ending on the Maturity Date, the aggregate outstanding principal amount of all such Loans not exceeding at
any time the Available Amount. Subject to the terms and conditions of this Agreement, the Borrowers may borrow, repay and re-borrow Loans.
2.1.2 Advances under the Credit Facility are to be used by the Borrowers for their general corporate purposes, provided that in no event will the Credit Facility be used to
finance a Hostile Acquisition without the consent of the Lender.
2.2 Loans
and Borrowings
Each Borrowing under the Credit Facility will be comprised of U.S. Base Rate Loans or LIBOR Loans in Dollars or Canadian Prime Rate Loans or CDOR Loans in Canadian Dollars, as any Borrower may
request in accordance herewith.
2.3 Requests for Borrowings
2.3.1 To request a Borrowing under the Credit Facility, any Borrower shall notify the Lender of
such request by written Borrowing Request substantially in the form of Exhibit A not later than 11:00 a.m., Toronto time, four (4) Business Days before the date of the proposed Borrowing or such shorter period as the Lender may agree to. Each
Borrowing Request shall be irrevocable. The Lender is entitled to rely upon and act upon any Borrowing Request given or purportedly given by any Borrower, and each Borrower hereby waives the right to dispute the authenticity and validity of
any such transaction once the Lender has advanced funds, based on such Borrowing Request. Each Borrowing Request shall specify the following information:
(a) the aggregate amount of the requested Borrowing;
(b) the date of such Borrowing, which shall be a Business Day;
(c) whether such Borrowing is to be a U.S. Base Rate Borrowing, a LIBOR Borrowing, a Canadian Prime Borrowing or a CDOR Borrowing;
(d) in the case of a CDOR Borrowing or LIBOR Borrowing, the initial Interest Period to be
applicable to such Borrowing, which shall be a period contemplated by the definition of the term "Interest Period"; and
(e) the location and number of the Borrower's account to which funds are to be disbursed.
2.3.2 Each CDOR Borrowing and LIBOR Borrowing under the Credit Facility initially shall have the
Interest Period specified in the applicable Borrowing Request. Thereafter, a Borrower may elect to convert any Borrowing to any different Type or to continue such Borrowing and, in the case of a CDOR Borrowing or LIBOR Borrowing, may elect the
Interest Periods therefor. The Borrowers may elect different options with respect to different portions of the affected Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. To make an election
pursuant to this Section 2.3.2, a Borrower shall notify the Lender of such election by delivering a Borrowing Request required under Section 2.3.1 as if the Borrower were requesting a Borrowing to be made on the effective date of such
election. Each such Borrowing Request shall be irrevocable. In addition to the information specified in Section 2.3.1, each Borrowing Request shall specify the Borrowing to which such request applies and, if different options are elected
with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing. If no election is made pursuant to this Section 2.3.2 at the end of an Interest Period applicable to any CDOR Loan or LIBOR Loan, the
applicable Borrower shall be deemed to have elected an Interest Period of one month for such CDOR Loan or LIBOR Loan for the immediately following Interest Period. Notwithstanding any contrary provision hereof, if an Event of Default has occurred
and is continuing and the Lender so notifies the Borrowers, then so long as an Event of Default is continuing (a) no outstanding Borrowing may be converted to or continued as a CDOR Borrowing or LIBOR Borrowing and (b) unless repaid, each CDOR
Borrowing and LIBOR Borrowing shall be converted to a Canadian Prime Borrowing or U.S. Base Rate Borrowing, respectively, at the end of the then-current Interest Period applicable thereto.
2.3.3 If at any time the Lender determines that LIBOR or CDOR is no longer determinable or the
supervisor for the administrator of LIBOR or CDOR or a Governmental Authority having jurisdiction over banks or other financial institutions has made a public statement identifying a specific date after which LIBOR or CDOR shall no longer be used
for determining interests rates for loans, then the Lender shall give written notice of such determination to the Borrowers and the Lender and the Borrowers shall endeavour to establish an alternate rate of interest to LIBOR or CDOR (as applicable)
that gives due consideration to the then prevailing market convention for determining a replacement standard and shall enter into an amendment to this Agreement to reflect such agreed upon alternate rate of interest.
2.3.4 Each CDOR Borrowing and LIBOR Borrowing will be subject to Sections 2.10 and 2.11.
2.4 Interest
2.4.1 The Loans under the Credit Facility comprising each U.S. Base Rate Borrowing and Canadian
Prime Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 days or 366 days, as the case may be) at a rate per annum equal to the U.S. Base Rate and Canadian Prime Rate, respectively, plus the
Applicable Margin from time to time in effect. It is understood and agreed that if at any time after the date hereof the Lender's cost of borrowing is increased, the Lender will be entitled, after consultation with the Borrowers, to increase the
Applicable Margin that is applicable to all or any Types of Loans or Borrowings to reflect the Lender's increased cost of making such Loans or Borrowings available to the Borrowers.
2.4.2 The Loans under the Credit Facility comprising each CDOR Borrowing shall bear interest
(computed on the basis of the actual number of days in the relevant Interest Period over a year of 365 or 366 days, as the case may be) at CDOR for the Interest Period in effect for such CDOR Loans plus the Applicable Margin from time to time in
effect.
2.4.3 The Loans under the Credit Facility comprising each LIBOR Borrowing shall bear
interest (computed on the basis of the actual number of days in the relevant Interest Period over a year of 360 days) at LIBOR for the Interest Period in effect for such LIBOR Loans plus the Applicable Margin from time to time in effect.
2.4.4 The applicable U.S. Base Rate, Canadian Prime Rate, LIBOR and CDOR Rate shall be
determined by the Lender, and such determination shall, absent manifest error, constitute prima facie evidence thereof.
2.4.5 Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date and upon termination of the Credit Facility, and in the event of any repayment or
prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment together with all applicable breakage costs.
2.4.6 All interest hereunder shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). Any Loan that is repaid on the same day on which it is made shall bear interest for one day.
2.4.7 For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith is to be
calculated on the basis of any period of time that is less than a calendar year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in
which the same is to be ascertained and divided by 360, 365 or 366, as applicable. The rates of interest under this Agreement are nominal rates, and not effective rates or yields. The principle of deemed reinvestment of interest does not
apply to any interest calculation under this Agreement.
2.4.8 If any provision of this
Agreement would oblige any Borrower to make any payment of interest or other amount payable to the Lender in an amount or calculated at a rate which would be prohibited by Law or would result in a receipt by the Lender of "interest" at a "criminal
rate" (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the
case may be, as would not be so prohibited by Law or so result in a receipt by the Lender of "interest" at a "criminal rate", such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows:
(a) first, by reducing the amount or rate of interest required to be paid to the Lender under this
Section 2.4; and
(b) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid
to the Lender which would constitute interest for purposes of Section 347 of the Criminal Code (Canada).
2.4.9 Notwithstanding the foregoing, if an Event of Default has occurred and is continuing, the Loans will bear interest to the extent permitted by Applicable Law, after as well
as before judgment, at a rate per annum equal to 2.0% plus the rate otherwise applicable to such Loans. All other amounts owing under this Agreement will bear interest at an interest rate equal to the one month LIBOR rate plus 4.0% per
annum.
2.5 Evidence of Debt
2.5.1 The Lender shall maintain accounts in which it shall record (a) the amount of each Loan
made hereunder and the relevant Interest Periods applicable thereto, (b) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to the Lender hereunder, and (c) the amount of any sum received by the
Lender hereunder.
2.5.2 The entries made in the accounts maintained pursuant to Section
2.5.1 shall be prima facie evidence (absent manifest error) of the existence and amounts of the obligations recorded therein; provided that the failure of the Lender to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrowers to repay the Loans and all other amounts payable in connection therewith, including interest and fees, in accordance with the terms of this Agreement.
2.6 Termination and Reduction by Lender of Credit Commitment
2.6.1 The Lender may at any time after the fifth anniversary of the Effective Date, upon giving
the Borrowers 90 days' prior written notice, terminate its commitment with respect to the Credit Facility and the Borrowers must repay all amounts outstanding under the Credit Facility (including all interest and fees payable hereunder) on the
termination date that is so elected by the Lender.
2.6.2 Upon the occurrence of a Change in
Control, the Lender shall have the right to terminate its commitment with respect to the Credit Facility upon giving the Borrowers 90 days' prior written notice. If the Lender so terminates the Credit Facility, the Borrowers must repay all
amounts outstanding under the Credit Facility (including all interest and fees payable hereunder) on the termination date that is so elected by the Lender.
2.6.3 Unless previously terminated, the commitment of the Lender with respect to the Credit Facility will terminate on the Maturity Date and each Borrower hereby unconditionally
jointly and severally promises to pay to the Lender the then unpaid principal amount of each Loan on the Maturity Date (or such earlier date that the Loans have been accelerated pursuant to the last paragraph of Section 7.1) together with all
interest accrued thereon and other amounts outstanding under this Agreement.
2.7 Mandatory Repayments of Excess
Drawn Amounts
If at any time the Lender determines that the Dollar Amount outstanding under the Credit Facility exceeds the Available Amount, then upon written notice from the Lender to such effect, the
Borrowers will, within 24 hours, make a prepayment of the Credit Facility in an amount equal to such excess.
2.8 Voluntary Prepayments and Cancellation
The Borrowers may, from time to time at their option, prepay any Loan without premium or
penalty or permanently reduce the Available Credit of the Credit Facility, provided that:
(a) any prepayment or reduction is in a minimum amount of $100,000;
(b) the Borrowers pay concurrently with any such prepayment all interest accrued on the amount
prepaid together with breakage costs, if any, incurred by the Lender as a result of any such prepayment and that are payable pursuant to Section 2.9;
(c) the Lender receives written notice of such prepayment, at least three Business Days prior to the date of such prepayment and specifying the amount and date of such
prepayment. Any such notice shall be irrevocable and the Borrowers shall be bound to prepay in accordance with such notice; and
(d) in the event that the notice provided to the Lender in accordance with (c) above, indicates that the prepaid amount is to permanently prepay the Credit Facility pursuant to
this Section 2.8, then the amount prepaid may not be re-borrowed thereunder (otherwise, the Borrowers will retain the right to re-borrow amounts prepaid in accordance with the terms and conditions of this Agreement).
2.9 Breakage Costs
If (a) any Borrower fails to
borrow or continue any CDOR Loan or LIBOR Loan on the date specified in any Borrowing Request delivered pursuant hereto, or (b) any CDOR Loan or LIBOR Loan is paid for any reason on any day other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default or voluntary or mandatory prepayment), then the Borrowers will compensate the Lender for all loss, costs and expenses that the Lender incurs in connection with such event (including
all loss, costs and expenses that the Lender incurs under its own credit facilities), as determined by the Lender. A certificate of the Lender setting forth any amount or amounts that the Lender is entitled to receive pursuant to this Section
2.9 will be delivered to the Borrowers and will, absent manifest error, constitute prima facie evidence thereof. The Borrowers will pay the Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
2.10 Alternate Rate of Interest
If prior to the
commencement of any Interest Period for a CDOR Borrowing or LIBOR Borrowing:
(a) the Lender determines that adequate and
reasonable means do not exist for ascertaining CDOR or LIBOR for such Interest Period; or
(b) the Lender determines that CDOR or LIBOR for such Interest Period will not adequately and
fairly reflect the cost to the Lender of making or maintaining CDOR Loans or LIBOR Loans included in such Borrowing for such Interest Period;
then the Lender shall give notice thereof to the Borrowers as promptly
as practicable thereafter and, until the Lender notifies the Borrowers that the circumstances giving rise to such notice no longer exist, (i) any Borrowing Request that requests the continuation of any Borrowing as an affected CDOR Borrowing or a
LIBOR Borrowing (as applicable) shall be deemed to request conversion to a Canadian Prime Borrowing or U.S. Base Rate Borrowing (as applicable), and (ii) any Borrowing Request that requests an affected CDOR Borrowing or LIBOR Borrowing (as
applicable) shall be made as a Canadian Prime Borrowing or U.S. Base Rate Borrowing (as applicable).
2.11 Increased Costs; Illegality
2.11.1 If any Change in Law shall:
(a) impose, modify or deem applicable any reserve, special deposit, additional capital, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, the Lender or any of its lenders; or
(b) impose on the Lender or any of its lenders or the London interbank market any other condition affecting any cost or charge directly or indirectly incurred by the Lender in
connection with a Loan hereunder (including the imposition on the Lender or any of its lenders of, or any change to, any Tax or other charge with respect to its or their CDOR Loans or LIBOR Loans or participation therein, or its obligation to make
CDOR Loans or LIBOR Loans);
and the result of any of the foregoing shall be to increase the cost to the Lender of making, continuing, converting to or maintaining any Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or otherwise), then the Borrowers will pay to the Lender such additional amount or amounts as will
compensate the Lender for such additional costs incurred or reduction suffered.
2.11.2 If the
Lender determines that any Change in Law regarding capital requirements has or would have the effect of reducing the Lender's rate of return with respect to the Loans made by the Lender to a level below that which the Lender would have achieved but
for such Change in Law prior to the occurrence of such Change in Law, then from time to time the Borrowers will pay to the Lender such additional amount or amounts as will compensate the Lender for any such reduction suffered.
2.11.3 A certificate of the Lender setting forth the amount or amounts necessary to compensate the
Lender as specified in Sections 2.11.1 or 2.11.2 shall be delivered to the Borrowers, and any such certificate shall include a brief description of the Change in Law and a calculation of the amount or amounts necessary to compensate the Lender and
shall, absent manifest error, be prima facie evidence of the amount of such compensation. The Borrowers shall pay the Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
2.11.4 Failure or delay on the part of the Lender to demand compensation pursuant to this Section
2.11 shall not constitute a waiver of the Lender's right to demand such compensation.
2.11.5 In the event that the Lender shall have determined (which determination shall be reasonably
exercised and shall, absent manifest error, constitute prima facie evidence thereof) at any time that the making or continuance of any Type of Loan has become unlawful or materially restricted as a result of compliance by the Lender in good
faith with any Applicable Law, then, in any such event, the Lender shall give prompt notice (by telephone and confirmed in writing) to the Borrowers of such determination. Upon the giving of the notice to the Borrowers referred to in this Section
2.11.5, the Borrowers' right to request (by continuation or otherwise), and the Lender's obligation to make, Loans of that Type shall be immediately suspended and if the affected Type of Loans are then outstanding, the Borrowers shall immediately,
or if permitted by Applicable Law, no later than the date permitted thereby, upon at least one Business Day prior written notice to the Lender, convert each such affected Type of Loan into a Type of Loan that is not so affected.
2.12 Payments Generally
The Borrowers shall make
each payment required to be made by them hereunder (whether of principal, interest or fees, amounts payable under any of Sections 2.9 or 2.11 or otherwise) prior to 12:00 p.m., Toronto time, on the date when due, in immediately available funds,
without set-off or counterclaim except for any deductions or withholdings for any present or future Taxes or similar charges that the Borrower is required to make pursuant to Applicable Law. Any amounts received after such time on any date
may, in the discretion of the Lender, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. The Borrowers shall make payments to the Lender in accordance with
instructions provided by the Lender to the Borrowers.
2.13 Addition of
Borrowers
Any Borrower may elect from time to time to designate another Subsidiary or a subsidiary of Brookfield Infrastructure Partners L.P. as a Borrower hereunder subject to delivering to the Lender a
signed accession agreement in the form required by the Lender and from and after the date of such designation, such Person shall for all purposes be a "Borrower" hereunder.
2.14 Withholding Tax.
2.14.1 Any and all payments required to be made by or on behalf of the Borrowers under this
Agreement will be made free and clear of, and without deduction or withholding for, or on account of, any present or future Taxes or similar charges (collectively, the "Withholdings") unless such Withholdings are required to be made under
Applicable Law. If a Borrower is so required to deduct or withhold any Withholdings from any amount payable to the Lender:
(a) The applicable Borrower will remit the Withholdings to the appropriate taxation authority
following its deduction or withholding prior to the date on which penalties attach thereto.
(b) Within 30 days after such Withholdings have been remitted, the applicable Borrower will
deliver to the Lender evidence satisfactory to the Lender, acting reasonably, that the taxes or charges in respect of which such deduction or withholding was made have been remitted to the appropriate taxation authority.
2.14.2 If a payment made to the Lender under this Agreement by any Borrower would be subject to
U.S. federal withholding tax imposed by FATCA if the Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the IRC, as applicable), the Lender shall deliver to
such Borrower at the time or times prescribed by law and at such time or times reasonably requested by such Borrower such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional
documentation reasonably requested by such Borrower as may be necessary for it to comply with its obligations under FATCA and to determine that the Lender has complied with the Lender's obligations under FATCA or to determine the amount to deduct
and withhold from such payment. Solely for purposes of this 2.14.2, "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
2.14.3 The Borrowers will pay any and all present or future stamp or documentary taxes or any other taxes or arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement to the relevant Governmental Authority in accordance with Applicable Law.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lender that:
3.1 Organization; Powers
It is organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority and holds all requisite licences, permits, approvals and qualifications necessary to carry on its business as
presently conducted, and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except to the extent that the failure to be so qualified would not have a Material Adverse Effect.
3.2 Authorization; Enforceability
This Agreement
is within its corporate or partnership power and has been authorized by all necessary corporate and other action. This Agreement has been executed and delivered by it and constitute legal, valid and binding obligations of it, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganisation, moratorium or other Laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in
equity or at law.
3.3 Governmental Approvals; No Conflicts
This Agreement, except for matters that, individually or in the aggregate would not result in a Material Adverse Effect, (a) does not require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, (b) does not violate any Applicable Law or its constating or organizational documents or any order of any Governmental Authority, (c) does not violate in any material way or result in a default under any
indenture, agreement or other instrument binding upon it or any of its assets, or give rise to a right thereunder to require any payment to be made by it, and (d) does not result in the creation or imposition of any lien on any of its assets.
3.4 Financial Information
3.4.1 All financial statements delivered to the Lender pursuant to this Agreement in respect of
a Borrower present fairly, in all material respects, the financial position and results of operations and cash flows of such Borrower as of such dates and for such periods of such financial statements, in accordance with GAAP.
3.4.2 All written information (including that disclosed in all financial statements) pertaining
to the Borrowers that has been made available to the Lender by any Borrower or any authorized representative of any Borrower, taken as a whole, was, when furnished, complete and correct in all material respects and did not, when furnished, contain
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made.
3.5 Litigation
There are no actions, suits or
proceedings pending or, to any Borrower's actual knowledge, threatened against or affecting any Borrower, any of the Subsidiaries or any of their assets that would, if determined adversely, affect the legality or enforceability of this Agreement or
have a Material Adverse Effect.
3.6 Compliance with Laws and Agreements
Except for any matters that, individually or in the aggregate, would not result in a Material Adverse Effect, the Borrowers and the Subsidiaries are in compliance with all Laws applicable to them or their property
(including all labour laws) and all indentures, agreements and other instruments binding upon them or their property (including all labour contracts). Except for any matters that, individually or in the aggregate, would not result in a
Material Adverse Effect, the Borrowers and the Subsidiaries have not violated or failed to obtain any Authorization necessary to the ownership of their property or assets or the conduct of their businesses.
3.7 Taxes
The Borrowers and the Subsidiaries
have timely filed or caused to be filed all Tax returns and reports required to have been filed and have paid or caused to be paid all Taxes required to have been paid (including all instalments with respect to the current period) and have made
adequate provision for Taxes for the current period, except Taxes which individually or in the aggregate would not have a Material Adverse Effect.
3.8 Pension Plans
All material obligations of the Borrowers and the Subsidiaries (including fiduciary, funding, investment and
administration obligations) required to be performed in connection with their pension and benefit plans and the funding agreements therefor have been performed on a timely basis and there are no unfunded or undisclosed liabilities thereunder, except
to the extent that the same individually or in aggregate would not result in a Material Adverse Effect.
3.9 No Order or Judgments
There are no orders, judgments, award or decrees outstanding against any Borrower or any Subsidiary, or
affecting their assets, that would have a Material Adverse Effect.
3.10 Insurance
Except for any matters which
would individually or in aggregate not have a Material Adverse Effect, all policies of fire, liability, workers' compensation, casualty, flood, business interruption, third party liability, and other forms of insurance owned or held by the Borrowers
and the Subsidiaries provide insurance coverage in at least such amounts and against at least such risks (but including in any event public liability) in each case as are usually insured against in the same general area by companies engaged in the
same or a similar business for the assets and operations of the Borrowers and the Subsidiaries (as applicable).
3.11 Solvency
No Borrower is an "insolvent person" within the meaning of the Bankruptcy and Insolvency Act (Canada) or the
United States Bankruptcy Code.
3.12 Environmental Matters
Neither the property of the Borrowers and the Subsidiaries, nor the operations conducted thereon violate any applicable order of any Governmental Authority made pursuant to Environmental Laws, where such violation
would result in remedial obligations having a Material Adverse Effect.
3.13 Money Laundering Laws
The operations of the Borrowers are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the U.S. Currency and Foreign Transactions Reporting Act
of 1970, as amended, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the other applicable money laundering Laws to which they are subject, including the rules and regulations thereunder
(collectively, the "Money Laundering Laws") and no action, suit or proceeding by or before any court or governmental agency, authority or body involving any of them with respect to the Money Laundering Laws is pending, except as disclosed in
writing to the Lender or as would not have a Material Adverse Effect.
3.14 Office of
Foreign Assets Control
None of the Borrowers and none of their respective directors, officers, Subsidiaries, or, to their knowledge, employees is (a) a person included in the Specially Designated Nationals and
Blocked Persons Lists (the "OFAC Lists"), as published from time to time by the Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC"), or (b) currently subject to any U.S. economic sanctions administered by
OFAC.
3.15 Survival of Representations and Warranties
The representations and warranties set out in this Article 3 and in any certificate, notice, delivered pursuant to this Agreement will survive the execution and delivery of this Agreement notwithstanding any
investigation or examination that may be made by the Lender.
3.16 Deemed
Repetition
The representations and warranties of the Borrowers contained in this Article 3 will be deemed to be repeated on the date of the delivery of each Borrowing Request and each rollover of a Borrowing
as if made on each such date, unless such representations and warranties expressly refer to a different date.
ARTICLE 4
CONDITIONS PRECEDENT TO LOANS
4.1 Effective Date
The obligations of the Lender
to make Loans hereunder shall not become effective until the date on which the Lender confirms to each Borrower that is a party to this agreement on the date hereof that each of the following conditions is satisfied (or waived by the Lender in
accordance with Section 9.2):
4.1.1 Credit Agreement. The Lender shall have
received from such Borrower a counterpart of this Agreement signed on behalf of such Borrower.
4.1.2 Other Documentation. The Lender shall have received such other documents and
instruments as are both customary for transactions of this type and as it may reasonably request.
4.2 Each
Borrowing
The obligation of the Lender to make a Loan on the occasion of any Borrowing (including on the occasion of the initial Borrowings hereunder), is subject to the satisfaction of the following
conditions: it being understood that the conditions are included for the exclusive benefit of the Lender and may be waived in writing in whole or in part by the Lender at any time:
(a) the representations and warranties of the Borrowers set forth in this Agreement shall be true
and correct on and as of the date of each such Borrowing, as if made on such date unless such representations and warranties expressly refer to a different date;
(b) at the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing; and
(c) the Lender shall have received a Borrowing Request in the manner and within the time period
required by Section 2.3.
ARTICLE 5
AFFIRMATIVE COVENANTS
From (and including) the Effective Date until the expiry or termination of the Credit Facility and the
payment in full of all Obligations owing hereunder, the Borrowers covenant and agree with the Lender that:
5.1 Financial Statements and Other Information
The Borrowers will furnish or cause to be furnished to the Lender:
5.1.1 at the request of the Lender, the most recently prepared unaudited financial statements of
any Borrower;
5.1.2 forthwith after a Responsible Officer of a Borrower learns of the
existence of a Default or Event of Default, the certificate of such Borrower, signed by a Responsible Officer, specifying the event which constitutes a Default or Event of Default and the steps being taken to cure such Default or Event of
Default;
5.1.3 forthwith after a Responsible Officer of a Borrower learns that any
representation or warranty is inaccurate in any material respect when made or deemed to have been made, notice thereof;
5.1.4 forthwith upon receipt thereof, notice to the Lender of any action, suit or proceeding affecting any Borrower or any Subsidiary that would, if determined adversely, have a
Material Adverse Effect and will, from time to time, furnish the Lender with such information reasonably required by the Lender with respect to the status of any such action, suit or proceeding; and
5.1.5 such other information as the Lender may from time to time reasonably request.
5.2 Existence; Conduct of Business
Each Borrower
will maintain its existence in good standing and conduct its businesses in a prudent manner.
5.3 Timely Payment
The Borrowers will make due
and timely payment, as provided for herein, of the principal of all Loans, all interest thereon and all fees and other amounts required to be paid hereunder.
5.4 Books and Records
The Borrowers will at all times keep true and complete financial books and records and accounts in accordance
with, to the extent applicable, GAAP.
5.5 Compliance with Laws
The Borrowers will, and will cause the Subsidiaries to, comply with all Laws applicable to them or their property, except where the occurrence of such non-compliance, individually or in the aggregate, would not result
in a Material Adverse Effect. The Borrowers will not directly or indirectly (a) lend or contribute by way of equity the proceeds of the Loans to any Person on the OFAC Lists at the time of such loan or contribution or any Person that is known
to the Borrowers as being owned or controlled by a Person on the OFAC Lists at such time, or (b) knowingly use or otherwise knowingly make available the proceeds of the Loans to any subsidiary, joint venture partner or other Person in violation of
any of the U.S. economic sanctions administered by OFAC.
5.6 Insurance
The Borrowers will, and will cause the Subsidiaries to, maintain or cause to be maintained, with financially sound and reputable insurers, insurance with respect to their respective properties and business against
such liabilities, casualties, risks and contingencies and in such types (including business interruption insurance and, to the extent available at commercially reasonable rates, flood insurance) and amounts as is customary in the case of Persons
engaged in the same or similar businesses, except where the occurrence of such non-compliance, individually or in the aggregate, would not result in a Material Adverse Effect.
5.7 Operation of Business
The Borrowers will,
and will cause the Subsidiaries to, maintain all necessary licences, approvals and permits and manage and operate their businesses in compliance in all material respects with all Applicable Laws, except where a failure to so maintain, manage and
operate would not result in a Material Adverse Effect.
5.8 Maintenance of
Assets
The Borrowers will cause their properties and the properties of the Subsidiaries, to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in their judgment may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at
all times; provided, however, that nothing will prevent or restrict the sale, abandonment or other disposition of any of such properties or any failure to take any of the foregoing actions where such action or failure would not result in a Material
Adverse Effect.
5.9 Payment of Taxes
The Borrowers will, and
will cause the Subsidiaries to, on or before the date for payment thereof, pay all Taxes imposed upon them or upon their assets, the non-payment of which would result in a Material Adverse Effect, except any such Tax that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are maintained in accordance with generally accepted accounting principles.
5.10 Use of Proceeds
The Borrowers will use the proceeds of all Borrowings obtained under the Credit Facility only for the purposes set
out in Section 2.1.2 of this Agreement.
ARTICLE 6
NEGATIVE COVENANTS
From (and including) the Effective Date until the termination or expiry of the Credit
Facility and the payment in full of all Obligations owing hereunder, the Borrowers covenant and agree with the Lender that:
6.1 Fundamental Changes
None of the Borrowers (in each case, a "Predecessor") will enter into any transaction whereby all or
substantially all of its assets would become the property of any other Person (a "Successor") whether by way of reorganization, reconstruction, consolidation, amalgamation, merger, transfer, sale or otherwise, unless:
(a) no Default or Event of Default will have occurred and remain outstanding and such transaction
will not result in the occurrence of any Default or Event of Default; and
(b) prior to or
contemporaneously with the consummation of such transaction the Predecessor and/or the Successor have executed such instruments and delivered such legal opinions as the Lender reasonably requests in forms acceptable to the Lender acting reasonably,
and done such things as are necessary or advisable to establish that upon the consummation of such transaction;
(i) the Successor will have assumed all the covenants and obligations of the Predecessor under this Agreement; and
(ii) this Agreement will be a valid and binding obligation of the Successor entitling the
Lender, as against the Successor, to exercise all its rights under its Agreement;
(whereupon such Successor will become a Borrower hereunder, entitled to exercise every right and power of the Predecessor hereunder with the same
effect as if such Successor had been named as a Borrower hereunder, whereupon the Predecessor will be released from all of its covenants and the Obligations).
The foregoing will not apply to any transfer of any
assets by any Borrower to any other Borrower or any Subsidiary.
ARTICLE 7
EVENTS OF DEFAULT
7.1 Events of Default
If any of the following events ("Events of Default") occurs:
(a) the Borrowers fail to pay the Obligations (or any part thereof) on the Maturity Date;
(b) the Borrowers fail to pay other amount owing hereunder when due and such failure continues
unremedied for a period of five Business Days after written notice thereof from the Lender;
(c) any representation or warranty made or deemed made by or on behalf of any Borrower hereunder
will prove to have been incorrect in any material respect when made or deemed to be made and if such incorrect representation or warranty is not remedied within 15 Business Days after notice thereof from the Lender to the Borrowers;
(d) any Borrower fails to observe or perform any other covenant, condition or agreement contained
in this Agreement and such failure continues unremedied for a period of 20 Business Days after written notice thereof from the Lender;
(e) any Borrower:
(i) becomes insolvent, or generally does not or becomes unable to pay its debts or meet its
liabilities as the same become due, or admits in writing its inability to pay its debts generally, or declares any general moratorium on its indebtedness, or proposes a compromise or arrangement between it and any class of its creditors;
(ii) commits an act of bankruptcy under the Bankruptcy and Insolvency Act (Canada), the
United States Bankruptcy Code or under analogous foreign law, or makes an assignment of its property for the general benefit of its creditors under such Act or under analogous foreign law, or makes a proposal (or files a notice of its
intention to do so) under such Act or under analogous foreign law;
(iii) institutes any
proceeding seeking to adjudicate it an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of
creditors), or composition of it or its debts or any other relief, under any federal, provincial or foreign Law in effect on the Effective Date or thereafter arising relating to bankruptcy, winding-up, insolvency, reorganization, receivership, plans
of arrangement or relief or protection of debtors (including the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada), the United States Bankruptcy Code and any applicable corporations
legislation) or at common law or in equity, or files an answer admitting the material allegations of a petition filed against it in any such proceeding;
(iv) applies for the appointment of, or the taking of possession by, a receiver, interim
receiver, receiver/manager, sequestrator, conservator, custodian, administrator, trustee, liquidator or other similar official for it or any substantial part of its property; or
(v) threatens to do any of the foregoing, or takes any action, corporate or otherwise, to
approve, effect, consent to or authorize any of the actions described in this Section 7.1(e) or in Section 7.1(f), or otherwise acts in furtherance thereof or fails to act in a timely and appropriate manner in defence thereof;
(f) any petition, proposal or notice of intention to file a proposal is filed, application made
or other proceeding instituted against or in respect of any Borrower:
(i) seeking to
adjudicate it an insolvent;
(ii) seeking a receiving order against it under the
Bankruptcy and Insolvency Act (Canada), the United States Bankruptcy Code or under analogous foreign law;
(iii) seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally
(or any class of creditors), or composition of it or its debts or any other relief under any federal, provincial or foreign Law in effect on the Effective Date or thereafter arising relating to bankruptcy, winding-up, insolvency, reorganization,
receivership, plans of arrangement or relief or protection of debtors (including the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada), the United States Bankruptcy Code and any applicable
corporations legislation) or at common law or in equity; or
(iv) seeking the entry of an
order for relief or the appointment of, or the taking of possession by, a receiver, interim receiver, receiver/manager, sequestrator, conservator, custodian, administrator, trustee, liquidator or other similar official for it or any substantial part
of its property;
and such petition, application or proceeding continues undismissed, or unstayed and in effect, for a period of 60 days after the institution thereof; provided that if an order, decree or judgment is
granted or entered (whether or not entered or subject to appeal) against the applicable Borrower thereunder in the interim, such grace period will cease to apply, and provided further that if such Borrower files an answer admitting the material
allegations of a petition filed against it in any such proceeding, such grace period will cease to apply;
(g) any other event occurs which, under the Laws of any applicable jurisdiction, has an effect
equivalent to any of the events referred to in either of Sections 7.1(e) or (f) and, if the event is equivalent to the event referred to in (f) (subject to the same provisos), the 60 day grace period will apply as set out in (f);
(h) any one or more judgments for the payment of borrowed money in an aggregate amount in excess
of the Specified Threshold Amount is rendered against any Borrower and such Borrower has not (i) provided for the discharge of such judgment in accordance with its terms within 30 days from the date of entry thereof, or (ii) procured a stay of
execution thereof within 30 days from the date of entry thereof and within such period, or such longer period during which execution of such judgment continues to be stayed, appealed such judgment and caused the execution thereof to be stayed during
such appeal; provided that if enforcement and/or realization proceedings or similar process are lawfully commenced in respect thereof in the interim, such grace period will cease to apply;
(i) any property of any Borrower having a fair market value in excess of the Specified
Threshold Amount is seized (including by way of execution, attachment, garnishment, levy or distraint) or any lien thereon securing indebtedness is enforced against such property, or such property has become subject to any charging order or
equitable execution of a Governmental Authority, or any writ of execution or distress warrant exists in respect of such property, or any sheriff or other Person becomes lawfully entitled by operation of law or otherwise to seize or distrain upon
such property, and in any case such seizure, enforcement, execution, attachment, garnishment, distraint, charging order or equitable execution or other seizure or right, continues in effect and is not released or discharged for more than 30
days or such longer period during which entitlement to the use of such property continues with the affected Borrower and the affected Borrower is contesting the same in good faith and by appropriate proceedings, provided that if the property is
removed form the use of the affected Borrower or is sold in the interim, such grace period shall cease to apply;
(j) any Borrower shall fail to pay any principal or premium or interest in respect of any indebtedness for borrowed money in an aggregate amount exceeding the Specified
Threshold Amount when the same becomes due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or
instrument relating to such indebtedness for borrowed money; or
(k) this Agreement, at any time for any reason, terminates or ceases to be in full
force and effect and a legally valid, binding and enforceable obligation of the Borrowers is declared to be void or voidable or is repudiated, or the validity, binding effect, legality or enforceability hereof or thereof is at any time contested by
any Borrower, or any Borrower denies that it has any or any further liability or obligation hereunder or thereunder, or any action or proceeding is commenced to enjoin or restrain the performance or observance by the Borrowers of any material terms
hereof or thereof or to question the validity or enforceability hereof or thereof,
then, and in every such event (other than an event with respect to a Borrower described in clause (e), (f) or (g) above), and at
any time thereafter during the continuance of such event or any other such event, the Lender may, by notice to the Borrowers, take either or both of the following actions, at the same or different times: (i) terminate the availability of the
Credit Facility, and thereupon the Credit Facility will terminate immediately, and (ii) declare all Loans and Obligations then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable
may thereafter be declared to be due and payable), and thereupon the principal of all Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrowers accrued hereunder, will become
due and payable immediately, without presentment, demand, protest or other notice of any kind except as set forth earlier in this paragraph, all of which are hereby waived by the Borrowers.
7.2 Legal Proceedings
If any Event of Default
occurs, the Lender may, in its discretion, exercise any right or recourse and/or proceed by any action, suit, remedy or proceeding against the Borrowers authorized or permitted by law for the recovery of all the indebtedness and liabilities of the
Borrowers to the Lender and proceed to exercise any and all rights and remedies hereunder, and no such remedy for the enforcement of the rights of the Lender will be exclusive of or dependent on any other remedy but any one or more of such remedies
may from time to time be exercised independently or in combination.
7.3 Non-Merger
The taking of a judgment or
judgments or any other action or dealing whatsoever by the Lender in respect of this Agreement will not operate as a merger of any indebtedness of any Borrower to the Lender or in any way suspend payment or affect or prejudice the rights, remedies
and powers, legal or equitable, which the Lender may have in connection with such liabilities and the surrender, cancellation or any other dealings with any security for such liabilities will not release or affect the liability of any Borrower
hereunder.
ARTICLE 8
SUBORDINATION AND DEPOSITS
8.1 Subordination
The Lender hereby agrees as
follows:
(a) the payment of the Obligations is subordinated and, subject to the right of
payment to the extent and in the manner set forth in paragraph (b) below, postponed to the repayment in full of all other indebtedness of the Borrowers (or any of them) and all liabilities and obligations of the Borrowers (or any of them) to
any holder of such indebtedness of any kind, now or hereafter existing, direct or indirect, absolute or contingent, joint or several, whether as principal or surety and whether under a credit agreement, promissory note, guarantee or otherwise
(collectively, the "Senior Debt"), as such Senior Debt may be modified renewed, extended, increased or modified in any way from time to time and including all principal, interest, fees, expenses and other amounts owing from time to time in
respect of such Senior Debt;
(b) the Lender may not receive any payment in respect of
any Obligations unless, at the time of such payment, all amounts then due and owing under or in respect of the Senior Debt have been paid in full and no default exists in respect of the Senior Debt or any document evidencing, securing or relating to
the Senior Debt;
(c) the Lender shall not accept any mortgage, pledge, hypothec or other
charge, lien or encumbrance on any property, asset or undertaking of any Borrower in respect of the Obligations;
(d) the Lender shall not initiate or prosecute any claim, action or other proceeding challenging the enforceability of any Senior Debt or object to any borrowing under any Senior
Debt;
(e) the Lender agrees, at the request of any holder of Senior Debt, to execute and
deliver to such holder a confirmation of the subordination provided for herein in the form attached as Exhibit C, but without prejudice to the rights of any holder of Senior Debt that does not request or receive such a confirmation; and
(f) the Borrowers are not restricted from incurring indebtedness or charging their property and
undertaking to secure any indebtedness or other obligations.
8.2 Deposits
Until the Maturity Date, the Lender or its nominee may from time to time request to place amounts on deposit with a Borrower or its nominee. If a Borrower or its nominee agrees to accept such a deposit, then the
parties agree that the terms set out in Exhibit B will govern such deposit and the parties to such arrangement will execute a form of Deposit Record substantially in the form of Exhibit B.
ARTICLE
9
MISCELLANEOUS
9.1 Notices
Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein will be in writing and will be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by email in each case to the addressee, as follows:
9.1.1 if to the Borrowers:
Brookfield Place
181 Bay Street, Suite 300
Toronto, Ontario M5J 2T3
Attention: Chloe
Berry
Email: chloe.berry@brookfield.com
and
73 Front Street
Fifth Floor
Hamilton, HM 12 Bermuda
Attention: Jane
Sheere
Email: jane.sheere@brookfield.com
9.1.2 if to the Lender:
Brookfield Place
181 Bay Street, Suite 300
Toronto, Ontario M5J 2T3
Attention: Chloe
Berry
Email: chloe.berry@brookfield.com
and
73 Front Street
Fifth Floor
Hamilton, HM 12 Bermuda
Attention: Jane
Sheere
Email: jane.sheere@brookfield.com
Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement will be deemed to have been given on the date of receipt.
9.2 Waivers
No failure or delay by the Lender in
exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of the Lender hereunder are cumulative and are not exclusive of any rights or remedies that it would otherwise have. Any waiver of any
provision of this Agreement or consent to any departure by the Borrowers therefrom will be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of any Loan
will not be construed as a waiver of any Default, regardless of whether the Lender may have had notice or knowledge of such Default at the time.
9.3 Expenses; Indemnity
9.3.1 The Borrowers will pay all reasonable out-of-pocket expenses incurred by the Lender,
including the reasonable fees, charges and disbursements of external counsel for the Lender in connection with the negotiation and preparation of this Agreement (whether or not the transactions contemplated hereby or thereby will be consummated),
the management and administration of Loans and this Agreement (whether or not any Borrowings are made hereunder), any amendments, modifications or waivers of the provisions of this Agreement, and the collection, enforcement or protection of the
Lender's rights in connection with this Agreement, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Credit Facility and the Loans.
9.3.2 Each Borrower will indemnify the Lender, its directors, officers and employees (each such
Person including the directors, officers and employees herein referred to as an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, cost recovery actions, damages, expenses and liabilities of whatsoever
nature or kind asserted by third parties, and all reasonable out-of-pocket expenses to which any Indemnitee may become subject arising out of or in connection with (a) the execution or delivery by the Lender of this Agreement or any agreement or
instrument contemplated hereby, the performance by the Lender of its obligations hereunder and the consummation of the transactions contemplated hereunder, (b) any Loan or any actual or proposed use of the proceeds therefrom, (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto, (d) any other aspect of this Agreement, and
(e) the enforcement of any Indemnitee's rights hereunder and any related investigation, defence, preparation of defence, litigation and enquiries; provided that such indemnity will not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, wilful misconduct or wilful material breach of this
Agreement by such Indemnitee.
9.4 Currency Indemnity
If, for the purposes of
obtaining judgment in any court in any jurisdiction with respect to this Agreement or any other Financing Document, it becomes necessary to convert into the currency of such jurisdiction (the "Judgment Currency") any amount due under this
Agreement or under any other Financing Document in any currency other than the Judgment Currency (the "Currency Due"), then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is
given. For this purpose "rate of exchange" means the rate at which the Lender is able, on the relevant date, to purchase the Currency Due with the Judgment Currency in accordance with its normal practice. In the event that there is a
change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given and the date of receipt by the Lender of the amount due, the Borrowers will, on the date of receipt by the Lender, pay such additional
amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received by the Lender on such date is the amount in the Judgment Currency which when converted at the rate of exchange
prevailing on the date of receipt by the Lender is the amount then due under this Agreement or such other Financing Document in the Currency Due. If the amount of the Currency Due which the Lender is so able to purchase is less than the amount
of the Currency Due originally due to it, the Borrowers shall indemnify and save the Lender harmless from and against all loss or damage arising as a result of such deficiency. This indemnity shall constitute an obligation separate and
independent from the other obligations contained in this Agreement and the other Financing Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Lender from time to time
and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any other Financing Document or under any judgment or order.
9.5 Successors and Assigns and Additions of Lenders
9.5.1 The provisions of this Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that no Borrower may, without the prior written consent of the Lender, assign or otherwise transfer any of its rights or obligations hereunder to any Person other
than a Successor pursuant to a transaction that is completed in compliance with Section 6.1.
9.5.2 The Lender may assign to one or more assignees all or any portion of its rights and
obligations under this Agreement at any time upon giving the Borrowers written notice thereof.
9.5.3 Any Lender may at any time and from time to time add any Person as a Lender hereunder by
delivering written notice of such designation to the Borrowers. From and after the delivery of any such written notice by any Lender, each Person that is so designated as a Lender hereunder will be entitled to all rights and benefits of this
Agreement and be jointly and severally liable with each other Lender hereunder for the obligations of the Lenders hereunder. The Lenders may designate and appoint one or more of the Lenders or any other Person as their agents under this
Agreement for the purposes of receiving all notices and requests to be issued, giving all consents and approvals and receiving all payments to be made to the Lenders hereunder and the Borrowers will be entitled to rely on any such designation and
appointment and will be deemed to have discharged their obligations hereunder if such notices and requests are delivered, consents and approvals are obtained and payments are made in accordance with such designations and appointments.
9.6 Survival
All covenants, agreements,
representations and warranties made by the Borrowers herein will be considered to have been relied upon by the Lender and will survive the execution and delivery of this Agreement and the making of any Loans, and all such covenants and agreements
will continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Credit Facility has not expired or been
terminated other than these amounts claimed or capable of being claimed under sections of this Agreement which by the terms of this Agreement, survive termination of this Agreement. Sections 2.9, 9.3 and 9.6 will survive and remain in full
force and effect, regardless of the repayment of the Obligations or the expiration or termination of the Credit Facility or this Agreement or any provision hereof.
9.7 Counterparts; Integration; Effectiveness
This Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which will constitute an original, but all of which when taken together will constitute a single contract. This Agreement and any separate letter agreements with respect to fees payable to the Lender,
constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement will become
effective when it will have been executed by the Lender and when the Lender will have received the counterpart hereof which, when taken together, bears the Borrowers' signatures, and thereafter will be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an executed original counterpart of a signature page of this Agreement by facsimile will be as effective as delivery of a manually executed original counterpart of this
Agreement.
9.8 Severability
Any provision of
this Agreement held to be invalid, illegal or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction will not invalidate such provision in any other jurisdiction.
9.9 Right of Set Off
If an Event of Default will
have occurred and be continuing, the Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any
time held and other obligations at any time owing by the Lender to or for the credit or the account of any Borrower against any of and all of the obligations of the Borrowers under this Agreement held by the Lender, irrespective of whether or not
the Lender will have made any demand under this Agreement and although such obligations may be unmatured. The rights of the Lender under this section are in addition to other rights and remedies (including other rights of set off) which the
Lender may have.
9.10 Governing Law; Jurisdiction
This Agreement
will be construed in accordance with and governed by the Laws of the Province of Ontario. Each of the Borrowers hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Courts of the
Province of Ontario.
9.11 Waiver of Jury Trial
Each party hereto waives, to the fullest extent permitted by Applicable Law, any right it may have to trial by jury in any legal proceeding directly or indirectly arising out of or relating to this
Agreement.
9.12 Headings
Article and
Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and will not affect the construction of, or be taken into consideration in interpreting, this Agreement.
9.13 Limited Recourse
Recourse under this
Agreement against each Borrower will be limited to the property and assets of such Borrower, and this Agreement will not be personally binding upon, and resort will not be had to, nor will recourse or satisfaction be sought from the private property
of, any of the limited partners, unitholders or securityholders of such Borrower (unless such Person is also a Borrower hereunder).
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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BIP BERMUDA HOLDINGS I LIMITED
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Per:
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/s/ Jane Sheere
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Name: Jane Sheere
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Title: Secretary
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BUUK BERMUDA HOLDCO LIMITED
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Per:
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/s/ Jane Sheere
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Name: Jane Sheere
Title: Secretary
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EXHIBIT A
FORM OF BORROWING REQUEST
Date:
The undersigned, BIP Bermuda Holdings I Limited (a "Borrower"), refers to the Credit
Agreement dated as of March 31, 2020, between the undersigned, as Borrower, and BUUK Bermuda Holdco Limited, as Lender (the "Credit Agreement"). Capitalized terms used herein and not otherwise defined herein will have the meanings
assigned to such terms in the Credit Agreement.
The Borrowers hereby gives you notice pursuant to Sections 2.3 of the Credit Agreement that it requests a Borrowing under the Credit Agreement as follows:
(A) Amount and Interest
Period: a Loan in the amount of $ and with an Interest Period of months.
(B) Date of Borrowing:
(C) Account of the Borrower to which the funds are to be disbursed:
(D) The undersigned confirms having read the provisions of the Credit Agreement which are relevant
to the furnishing of this Borrowing Request. The undersigned confirms that the Borrowers have complied with all conditions precedent for the requested Borrowing.
The Borrower hereby certifies that the
representations and warranties of the Borrowers set forth in the Credit Agreement are true and correct on and as of the date hereof as if made as of the date hereof, and that no Default or Event of Default exists.
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BIP BERMUDA HOLDINGS I LIMITED
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Per:
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Name:
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Title:
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EXHIBIT B
FORM OF DEPOSIT RECORD
FOR VALUE RECEIVED, ("Depositee"), having its principal office at , promises to pay on demand to the order of
("Depositor"), having its principal office at , the Principal Amounts (as defined below) as the Depositor may from time to time advance to the Depositee, together with interest from the date hereof at the
Applicable Interest Rate (as defined below), calculated and compounded monthly, both before and after maturity, default and judgment and until actual payment, with interest on overdue interest at the same rate.
WHEREAS, the Depositor may make deposits with the Depositee from time to time (each a "Deposit");
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
WHEN USED
HEREIN, the following capitalized terms will have the following meanings:
"Applicable Interest Rate" will mean a rate of [one month LIBOR [+ %] per annum/%
per annum], noting that such rate may be revised so as to reflect market terms prior to any deposit being made, based on the deposit rates of at least two commercial banks.
"Business Day"
means any day except a Saturday, Sunday or other day on which commercial banks in New York City or Toronto, Canada are authorized or required by law to close.
"Deposit Date" will be the
date of each advance under this Note.
"Default Rate" will be the Applicable Interest Rate plus five percent (5%) per annum.
"Deposits" mean, collectively, all Deposits advanced by the Depositor to the Depositee from time to time.
"Events of Default"
means the occurrence of any of the following, each of which will constitute an Event of Default under this Note:
i. Failure to make any payment of interest or principal on
this Note when due, or failure to pay the principal balance of this Note on demand; or
ii. Failure to pay any other amount
payable pursuant to this Note when due and payable in accordance with the provisions hereof, with such failure continuing for ten (10) Business Days after Depositor delivers written notice thereof to Depositee; or
iii. Any default in the performance of the obligations pursuant to Section 3; or
iv. Any insolvency or bankruptcy of the Depositee.
"Governmental Authority" will mean any nation or government, any federal, state, provincial, local or other political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Material Adverse Effect" will mean any event or condition that has a material adverse effect on the
ability of Depositee to repay the principal and interest of the Obligations as they become due.
"Note" means this deposit record and "Notes" means collectively, all such deposit
records evidencing Deposits advanced by the Depositor to the Depositee from time to time.
"Obligations" will mean all obligations, liabilities and indebtedness of every nature of
Depositee from time to time owing to Depositor under or in connection with this Note and the Deposits (including all Principal Amounts and all interest accrued thereon).
"Payment Dates"
will be and in each calendar year, commencing on .
"Person" will mean an individual, a corporation, a partnership, an association, a trust,
a limited liability company or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"Principal Amount" will mean,
with respect to any Deposit, the principal amount of such Deposit.
"Requirements of Law" will mean, as to any Person, the charter and by-laws or other organizational or governing
documents of such Person, and any law, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of
its property is subject.
1. The Obligations will be due and payable in lawful money of Canada as follows:
a. On each Payment Date until this Note is paid in full on demand, Depositee will pay to
Depositor all interest then accrued on each Principal Amount at the Applicable Interest Rate. Depositee may request, and Depositor may, in its sole discretion, agree that any interest payable by Depositee under this Note will continue to
accrue until such date as Depositor may agree to.
b. On demand, but in any event, no later than
, Depositee will pay to Depositor the Obligations then outstanding.
c. Amounts due on this Note will be payable, without any counterclaim, setoff or deduction
whatsoever except for any withholding taxes that the Depositee is required to withhold at law, at the office of Depositor or its agent or designee at the address set forth in the first paragraph of this Note or at such other place as Depositor or
its agent or designee may from time to time designate in writing.
d. The Depositee acknowledges
that the actual recording of amounts advanced and amounts paid on the attached grid schedule shall, in the absence of manifest error, be prima facie evidence of the same; provided that the failure of the Depositor to record the same on the
grid schedule shall not affect the obligation of the undersigned to pay or repay the amounts advanced by the Depositor, together with interest thereon at the Applicable Interest Rate.
2. In order to induce Depositor to make the Deposits, Depositee makes the following representations and warranties as of each Deposit Date. Such representations and
warranties, will survive the effectiveness of this Note, the execution and delivery hereof and the making of the Deposits.
a. Depositee is (i) duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) is duly authorized and qualified to do
business and is in good standing under the laws of each jurisdiction except where the failure to be so qualified and in good standing would not result in a Material Adverse Effect, and (iii) has all powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now conducted or as it is presently proposed to be conducted except where the failure to have the same would not result in a Material Adverse Effect.
b. Depositee has the power and authority to execute, deliver and carry out the terms and provisions
of this Note and has taken all necessary action to authorize the execution and delivery on behalf of Depositee and the performance by Depositee hereof. Depositee has duly executed and delivered this Note and this Note constitutes the legal,
valid and binding obligation of Depositee, enforceable in accordance with its terms.
c. Neither the execution, delivery or
performance by the Depositee of this Note, nor compliance by the Depositee with the terms and provisions hereof, nor the consummation of the transactions contemplated hereby, (i) will contravene any applicable provision of any material law, statute,
rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality that is binding on the Depositee or its property, or (ii) will conflict, in any material respect, with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a material default under, or result in the creation or imposition of (or the obligation to create or impose) any agreement to which the Depositee is a party or by which it or any of its assets is
bound.
3. Depositee covenants and agrees that so long as the Deposits are outstanding and until payment in full of
all of the Obligations, unless Depositor will otherwise give prior written consent:
a. Depositee will at all times maintain its existence and preserve and keep in full force and
effect its rights and franchises material to its businesses, except where the loss or termination of such rights and franchises would not have a Material Adverse Effect;
b. Depositee will remain qualified to do business and maintain its good standing in each jurisdiction in which the nature of its business and the ownership of its property
requires it to be so qualified and in good standing, except where noncompliance would not have a Material Adverse Effect; and
c. Depositee will comply with all Requirements of Law, except where noncompliance would not have a Material Adverse Effect.
4. Depositee may prepay the Principal Amount of any Deposit in full or in part at any time [together with all
interest accrued on such prepaid amount].
5. If the Depositee defaults in the payment of any payment that is due
on any Payment Date (or such later date as the Depositor has agreed pursuant to section 1(a) that such installment is due), then the Depositee will pay to Depositor a late payment charge in an amount equal to five percent (5%) of the amount of the
installment not paid as aforesaid. Said late charge payments, if payable, will be payable without notice or demand by the Depositor, and are independent of and have no effect upon the rights of the Depositor under paragraph 1 above.
6. This Note will be governed by and construed in accordance with the laws of the Province of Ontario.
7. The Depositee will execute and acknowledge (or cause to be executed and acknowledged) and deliver to the Depositor
all documents, and take all actions, reasonably required by the Depositor from time to time to confirm the rights created or now or hereafter intended to be created under this Note, to protect and further the validity and enforceability of this
Note, or otherwise carry out the purposes of the Note and the transactions contemplated hereunder; provided, however, that no such further actions, assurances and confirmations will increase the Depositee's obligations under this
Note.
8. No modification, amendment, extension, discharge, termination or waiver (a "Modification") of any provision
of this Note, nor consent to any departure by the Depositee therefrom, will in any event be effective unless the same will be in a writing signed by the Depositor, and then such waiver or consent will be effective only in the specific instance, and
for the purpose, for which given. Except as otherwise expressly agreed to by the Depositor in writing, no Modification will entitle the Depositee to any other or future Modification, whether in the same, similar or other circumstances.
The Depositor does not hereby agree to, nor does the Depositor hereby commit itself to, enter into any Modification.
IN WITNESS WHEREOF, Depositee has caused this Note to be executed and delivered as of the day
and year first above written.
By:
Name:
Title:
Currency: ________________
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DATE
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LOAN NUMBER
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ADVANCES
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PRINCIPAL PAYMENTS
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UNPAID BALANCE
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NOTATION
MADE BY
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EXHIBIT C
FORM OF CONFIRMATION OF SUBORDINATION
TO: and its successors and assigns (the "Senior Lender")
RE: Credit agreement dated as of between (the "Borrower") and the
Senior Lender, as amended, modified or supplemented from time to time (the "Senior Credit Agreement")
AND RE: Credit Agreement dated as of March 31, 2020 between BIP Bermuda Holdings I Limited, as borrower, and BUUK Bermuda Holdco Limited, as lender (the "Subordinate
Lender"), as amended, modified or supplemented from time to time (the "Subordinate Credit Agreement")
Pursuant to section 8.1 of the Subordinate Credit Agreement, the undersigned confirms in favour of the
Senior Lender that (i) all indebtedness, liabilities and obligations of the Borrower owing from time to time under or pursuant to the Senior Credit Agreement constitutes "Senior Debt" for all purposes of the Subordinate Credit Agreement, and
(ii) the Senior Lender is entitled to all the rights and benefits of section 8.1 of the Subordinate Credit Agreement in respect of the Senior Debt owing to it from time to time.
All terms that are capitalized but
not defined herein have the meanings attributed to such terms in the Subordinate Credit Agreement.
This confirmation is binding upon the undersigned and its successors and assigns, and enures to the benefit of the
Senior Lender and its respective successors and assigns.
DATED this day of .
[Signature Page Follows]
- 2-
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BUUK BERMUDA HOLDCO LIMITED
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Per:
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Name:
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Title:
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Per:
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Name:
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Title:
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Exhibit 10.8
PROMISSORY NOTE
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Amount: US$511,000,000.00
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Date: March 30, 2020
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FOR VALUE RECEIVED, THE UNDERSIGNED, BUUK Bermuda Holdco Limited, (the “Borrower”) hereby
acknowledges itself indebted and promises to pay to or to the order of BIP (Barbados) Holdings II Limited (the “Holder”) the principal sum of US$511,000,000.00 (the “Principal Amount”) in lawful money of the
United States, which sum shall be due and payable no later than March 30, 2030, and to pay interest on the Principal Amount outstanding from time to time at the rate and times and in the manner set forth herein.
The provisions of this promissory note (the “Note”) shall be binding upon the Borrower and its successors and permitted assigns and shall
enure to the benefit of the Holder and its successors and assigns. The Borrower may not assign its obligations under this Note without the prior written consent of the Holder. The Holder may assign its rights under this Note in whole or in part
without the consent of the Borrower.
The Principal Amount outstanding from time to time shall bear interest at a rate of 1.92% per annum which shall
accrue from and including the date first written above until March 30, 2030 or until such earlier date on which the Principal Amount is paid in full by the Borrower. Such interest shall be payable
bi-annually in arrears on September 30 and March 30 of each year (each, an “Interest Payment Date”). On each Interest Payment Date, all interest accrued and unpaid to such Interest
Payment Date on this Note shall automatically be deemed to be advanced to the Borrower and reinvested by the Holder and added to the Principal Amount, without any further act by or on behalf of the Holder with respect thereto, on the immediately
following business day.
The Borrower may prepay the Principal Amount in whole or in part at any time or from time to time without notice or bonus. All
payments received shall be applied first against any interest that has accrued and is unpaid, and thereafter against the Principal Amount.
An
“Event of Default” shall have occurred hereunder on the occurrence of any one or more of the following events:
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(a)
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if the Borrower fails to pay when due any payment of the Principal Amount or interest on this Note and such
failure continues for fifteen (15) days after the Holder notifies the Borrower thereof in writing;
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(b)
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if the Borrower (i) becomes insolvent or generally not able to pay its debts as they become due,
(ii) institutes or has instituted against it any proceeding seeking (A) to adjudicate it a bankrupt or insolvent, (B) liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors including, but not limited to, any plan of compromise or arrangement or other corporate proceeding involving its creditors, or (C) the entry of an order
for relief or the appointment of a receiver, receiver-manager, custodian, trustee or other similar official for it or for any substantial part of its properties and/or assets, and in the case of any such proceeding instituted against it (but not
instituted by it), either the proceeding remains undismissed or unstayed for a period of thirty (30) days or more, or any of the actions sought in such proceeding (including, but not limited to, the entry of an order for relief against it or
the appointment of a receiver, receiver-manager, trustee, custodian or other similar official for it or for any substantial part of its properties and assets) occurs, or (iii) takes any corporate action to authorize any of the above actions; or
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(c)
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if the Borrower defaults under any other promissory note pursuant to which the Borrower is indebted to or
promises to pay a certain amount to the Holder.
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The Borrower acknowledges and agrees that upon an Event of Default, the outstanding
Principal Amount and all accrued and unpaid interest thereon shall, at the option of the Holder, be immediately due and payable.
No waiver of any obligation of the Borrower under this Note shall be effective unless it is in writing from the Holder.
This Note may not be amended, restated, supplemented or modified by the Borrower without the prior written consent of the Holder, which consent may be
unreasonably withheld.
Presentment for payment, notice of non-payment, protest and notice of protest are hereby
waived.
This Note shall be governed by the laws of Bermuda and, in respect of any proceedings with respect to this Note, each of the Holder and the
Borrower hereby irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of Bermuda.
Each
of the provisions contained in this Note is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any
other provision hereof.
[Signature Page to Follow]
IN WITNESS WHEREOF this Note has been duly executed by the Borrower as of the date
first written above.
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BUUK BERMUDA HOLDCO LIMITED
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By:
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/s/ James Bodi
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Name: James Bodi
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Title: Director
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[Step 58 – Note F]
Exhibit 10.9
PROMISSORY NOTE
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Amount: Cdn$ equivalent of US$530,969,593.00
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Date: March 30, 2020
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FOR VALUE RECEIVED, THE UNDERSIGNED, Brookfield Infrastructure Corporation, (the “Borrower”)
hereby acknowledges itself indebted and promises to pay to or to the order of Brookfield Infrastructure LP (the “Holder”) the principal sum of the equivalent of US$530,969,593.00 (the “Principal Amount”) in
lawful money of Canada, which sum shall be due and payable no later than March 30, 2030, and to pay interest on the Principal Amount outstanding from time to time at the rate and times and in the manner set forth herein.
The provisions of this promissory note (the “Note”) shall be binding upon the Borrower and its successors and permitted assigns and shall
enure to the benefit of the Holder and its successors and assigns. The Borrower may not assign its obligations under this Note without the prior written consent of the Holder. The Holder may assign its rights under this Note in whole or in part
without the consent of the Borrower.
The Principal Amount outstanding from time to time shall bear interest at a rate of 7.18% per annum which shall
accrue from and including the date first written above until March 30, 2030 or until such earlier date on which the Principal Amount is paid in full by the Borrower. Such interest shall be payable
bi-annually in arrears on September 30 and March 30 of each year (each, an “Interest Payment Date”). On each Interest Payment Date, all interest accrued and unpaid to such Interest
Payment Date on this Note shall automatically be deemed to be advanced to the Borrower and reinvested by the Holder and added to the Principal Amount, without any further act by or on behalf of the Holder with respect thereto, on the immediately
following business day.
The Borrower may prepay the Principal Amount in whole or in part at any time or from time to time without notice or bonus. All
payments received shall be applied first against any interest that has accrued and is unpaid, and thereafter against the Principal Amount.
An
“Event of Default” shall have occurred hereunder on the occurrence of any one or more of the following events:
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(a)
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if the Borrower fails to pay when due any payment of the Principal Amount or interest on this Note and such
failure continues for fifteen (15) days after the Holder notifies the Borrower thereof in writing;
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(b)
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if the Borrower (i) becomes insolvent or generally not able to pay its debts as they become due,
(ii) institutes or has instituted against it any proceeding seeking (A) to adjudicate it a bankrupt or insolvent, (B) liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors including, but not limited to, any plan of compromise or arrangement or other corporate proceeding involving its creditors, or (C) the entry of an order
for relief or the appointment of a receiver, receiver-manager, custodian, trustee or other similar official for it or for any substantial part of its properties and/or assets, and in the case of any
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such proceeding instituted against it (but not instituted by it), either the proceeding remains undismissed or unstayed for a period of thirty (30) days or more, or any of the actions sought
in such proceeding (including, but not limited to, the entry of an order for relief against it or the appointment of a receiver, receiver-manager, trustee, custodian or other similar official for it or for any substantial part of its properties and
assets) occurs, or (iii) takes any corporate action to authorize any of the above actions; or
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(c)
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if the Borrower defaults under any other promissory note pursuant to which the Borrower is indebted to or
promises to pay a certain amount to the Holder.
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The Borrower acknowledges and agrees that upon an Event of Default, the outstanding
Principal Amount and all accrued and unpaid interest thereon shall, at the option of the Holder, be immediately due and payable.
No waiver of any
obligation of the Borrower under this Note shall be effective unless it is in writing from the Holder.
This Note may not be amended, restated,
supplemented or modified by the Borrower without the prior written consent of the Holder, which consent may be unreasonably withheld.
Presentment for
payment, notice of non-payment, protest and notice of protest are hereby waived.
This Note shall be governed by
the laws of the Province of British Columbia and the federal laws of Canada applicable therein, and, in respect of any proceedings with respect to this Note, each of the Holder and the Borrower hereby irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of the Province of British Columbia.
Each of the provisions contained in this
Note is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.
[Signature Page to Follow]
IN WITNESS WHEREOF this Note has been duly executed by the Borrower as of the date
first written above.
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BROOKFIELD INFRASTRUCTURE CORPORATION
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
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Title: Vice President
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[Step 54 – Note E2]
EQUITY COMMITMENT AGREEMENT
THIS AGREEMENT made as of the 31st day of March, 2020
B E T W E E N:
BROOKFIELD INFRASTRUCTURE HOLDINGS (CANADA) INC.
("Canada HoldCo"), a corporation existing under the laws of the Province of Ontario
- and -
BROOKFIELD INFRASTRUCTURE CORPORATION
("BIPC"), a corporation existing under the laws of the Province of
British Columbia
RECITALS:
A. WHEREAS
Canada HoldCo will subscribe for, or cause one of its Affiliates (as defined below) to subscribe for, Class C Shares or Preferred Shares of BIPC, on the terms and conditions set forth in this Equity Commitment Agreement and, as applicable, the
articles of incorporation of BIPC, as the same may be amended and/or restated from time to time; and
B. WHEREAS BIPC intends to call on Canada HoldCo's Commitment, from time to time and as
necessary, to fund growth capital investments and acquisitions, or for working capital purposes;
NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and other good and
valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows:
1. Interpretation
1.1 Definitions. In this Equity Commitment Agreement, the following terms shall have
the following meanings:
1.1.1 "Affiliate" means, with respect to a Person, any other
Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person;
1.1.2 "BIP Group" means the BIP Partnership, the Infrastructure Partnership, the Holding
Entities, the Operating Entities and any other direct or indirect Subsidiary of a Holding Entity, other than any member of the BIPC Group;
1.1.3 "BIPC" has the meaning assigned thereto in the preamble;
1.1.4 "BIPC Group" means BIPC and any of its direct or indirect Subsidiaries;
1.1.5 "BIP Partnership" means Brookfield Infrastructure Partners L.P.;
1.1.6 "Business Day" means any day that the Principal Stock Exchange is open for trading, other than any legal holiday recognized as such in the Province of Ontario or the
Province of British Columbia;
1.1.7 "Canada HoldCo" has the meaning assigned thereto
in the preamble;
1.1.8 "Class A Shares" means the class A subordinate voting shares
in the capital of BIPC;
1.1.9 "Class C Shares" means the class C non-voting shares
in the capital of BIPC;
1.1.10 "Commitment" has the meaning assigned thereto in
Section 2.1;
1.1.11 "Commitment Period" means the period commencing on the Effective
Date and ending on the tenth anniversary following the Effective Date;
1.1.12 "Control" means the control of one Person of another Person in accordance with the
following: a Person ("A") controls another Person ("B") where A has the power to determine the management and policies of B by contract or status (for example the status of A being the general partner of B) or by virtue of beneficial ownership
of a majority of the voting interests in B; and for certainty and without limitation, if A owns shares to which more than 50% of the votes permitted to be cast in the election of directors to the board of B or A is the general partner of B, a
limited partnership, then in each case A Controls B for this purpose;
1.1.13 "Draw-Down Notice" means a notice to Canada HoldCo of a draw-down on the
Commitment;
1.1.14 "Effective Date" means the date hereof;
1.1.15 "Equity Commitment Agreement" means this equity commitment agreement as it may be
amended or restated from time to time;
1.1.16 "Holding Entity" has the meaning
assigned thereto in the BIP Partnership Agreement;
1.1.17 "Infrastructure Partnership"
means Brookfield Infrastructure L.P.;
1.1.18 "Operating Entity" has the meaning
assigned thereto in the BIP Partnership Agreement;
1.1.19 "Person" means any
individual, partnership, limited partnership, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, trust, trustee, executor, administrator or other legal personal
representative, regulatory body or agency, government or governmental agency, authority or entity however designated or constituted;
1.1.20 "Preferred Shares" means the class A senior preferred shares and the class B junior preferred shares in the capital of BIPC;
1.1.21 "Principal Stock Exchange" means the New York Stock Exchange or if the Class A
Shares are not listed on the New York Stock Exchange, the principal stock exchange on which the Class A Shares are listed;
1.1.22 "Subscriber" means Canada HoldCo or any other member of the BIP Group that Canada
HoldCo causes to subscribe for Class C Shares or Preferred Shares pursuant to this Equity Commitment Agreement;
1.1.23 "Subscription Payment" has the meaning assigned thereto in Section 2.2;
1.1.24 "Subscription Payment Date" means a date specified in a Draw-Down Notice on which a Subscription Payment is to be made to BIPC;
1.1.25 "Subsidiary" means, with respect to any Person, (i)
any other Person that is directly or indirectly Controlled by such Person, (ii) any trust in which such Person holds all of the beneficial interests or (iii) any partnership, limited liability company or similar entity in which
such Person holds all of the interests other than the interests of any general partner, managing member or similar Person; and
1.1.26 "US$" means United States dollars.
1.2 Headings. The inclusion of headings and a table of contents in this Equity Commitment Agreement are for convenience of reference only and will not affect the
construction or interpretation hereof.
1.3 Gender and Number. In this Equity
Commitment Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing gender include all genders or the neuter, and words importing the neuter include all genders.
1.4 Invalidity of Provisions. Each of the provisions contained in this Equity
Commitment Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction will not affect the validity or enforceability of any other provision
hereof. To the extent permitted by applicable law, the parties waive any provision of law which renders any provision of this Equity Commitment Agreement invalid or unenforceable in any respect. The parties will engage in good faith
negotiations to replace any provision which is declared invalid or unenforceable with a valid and enforceable provision, the economic effect of which comes as close as possible to that of the invalid or unenforceable provision which it replaces.
1.5 Currency. Except where otherwise expressly provided, all amounts in this Equity
Commitment Agreement are stated and shall be paid in US$. BIPC shall call all Subscription Payments in US$. Canada HoldCo shall make all Subscription Payments in US$ or in the equivalent amount of Canadian Dollars on the basis of rates quoted by
appropriate financial institutions of repute or by internationally recognized financial publications or news services. If it is necessary for any amounts to be converted from another currency into US$, then BIPC will convert the amount using rates
quoted by appropriate financial institutions of repute or by internationally recognized financial publications or news services.
1.6 Waiver, Amendment.
Except as expressly provided in this Equity Commitment Agreement, no amendment or waiver of
this Equity Commitment Agreement will be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Equity Commitment Agreement will constitute a waiver of any other provision nor will any waiver of
any provision of this Equity Commitment Agreement constitute a continuing waiver unless otherwise expressly provided.
1.7 Governing Law
This Equity Commitment Agreement shall be governed by and construed in accordance with the laws of
Ontario and the federal laws of Canada applicable therein.
2. The Commitment
2.1 The aggregate commitment of Canada HoldCo to subscribe for Class C Shares and Preferred Shares
of BIPC pursuant to this Equity Commitment Agreement is $1 billion (the "Commitment").
2.2 Each draw-down shall not exceed $250,000,000, unless Canada HoldCo otherwise agrees, and each
subsequent draw-down shall be made a minimum of 120 days after the receipt of the last Draw-Down Notice from BIPC.
2.3 Subject to Sections 3 and 4, on each Subscription Payment Date, the Subscriber shall pay to BIPC an amount of cash set out in a Draw-Down Notice (the "Subscription
Payment") in exchange for the issuance of Class C Shares and/or Preferred Shares pursuant to Section 6.
2.4 The amount of the Commitment shall be permanently reduced by the amount of any Subscription Payment made to BIPC.
3. Subscription Payments on Draw-Downs
3.1 Canada HoldCo shall cause one or more Subscribers to make a Subscription Payment to BIPC
following receipt of a Draw-Down Notice from BIPC and in such amount as BIPC shall specify in the Draw-Down Notice; provided that no Subscription Payment shall be less than $10 million or in excess of the undrawn amount of the Commitment at the time
the Subscription Payment is to be made.
3.2 BIPC shall give the Draw-Down Notice to Canada
HoldCo in the manner specified in Section 10 hereof. The Draw-Down Notice shall:
3.2.1 specify (i) the place at which such Subscription Payment is to be made, including, if
applicable, the account of BIPC or one or more of its subsidiaries to which such Subscription Payment should be made, (ii) the security to be issued, (iii) the amount of such Subscription Payment to be made, and (iv) the Subscription Payment Date
and time at which such Subscription Payment is to be made, which shall not be earlier than 12:00 p.m., Toronto time, generally on the tenth Business Day, but in no event earlier than the fifth Business Day, after the giving of the Draw-Down
Notice; and
3.2.2 confirm that (i) BIPC is able to pay its liabilities as they become due; and (ii) there
has been no material adverse effect with respect to BIPC or its affairs or financial condition.
3.3 If BIPC deems it advisable, BIPC may reduce the amount of or cancel any call for a
Subscription Payment by giving notice to Canada HoldCo in accordance with Section 10, subject to Section 3.1.
4. Conditions Precedent
Canada HoldCo's obligations pursuant to Section 3.1 are subject to compliance, as of
the Subscription Payment Date, with each of the following conditions precedent which are for the sole and exclusive benefit of Canada HoldCo and may be waived by Canada HoldCo in its sole discretion:
4.1 a member of the BIP Group shall Control BIPC and a member of the BIP Group shall have the
ability to elect a majority of the directors of BIPC;
4.2 a Draw-Down Notice shall have been
provided to Canada HoldCo in accordance with Section 3.2;
4.3 a majority of the directors of
BIPC shall have authorized the issuance of Class C Shares or Preferred Shares pursuant to Section 6; and
4.4 on each of the five Business Days immediately preceding the Subscription Payment Date, Class A
Shares shall have traded on the Principal Stock Exchange.
5. Expiration of the
Commitment Period and Termination
Upon the earlier of (i) the expiration of the Commitment Period, subject to the ongoing obligation to satisfy a previously issued Draw-Down Notice, and
(ii) the making of Subscription Payments equal to the full amount of the Commitment, no Subscriber shall be required to make Subscription Payments and this Equity Commitment Agreement shall terminate and no longer be of any effect.
6. Issuance of Class C Shares or Preferred Shares
6.1 Upon making a Subscription Payment to BIPC, BIPC, at BIPC's election, shall:
6.1.1 issue a number of Class C Shares equal to the cash amount of the Subscription Payment
divided by the volume-weighted average of the trading price for one Class A Share on the Principal Stock Exchange for the five trading days immediately preceding the Subscription Payment Date;
6.1.2 issue a number of Preferred Shares equal to the cash amount of the Subscription Payment
divided by the issue price and redemption price for one Preferred Share (being $25.00); or
6.1.3 issue a number of any combination of Class C Shares and/or Preferred Shares with an
aggregate issue price, as calculated in accordance with this Section 6.1, equal to the cash amount of the Subscription Payment.
6.2 Prior to the issuance of Preferred Shares to the Subscriber, BIPC shall deliver to Canada HoldCo the terms of the applicable Preferred Shares. If Canada HoldCo does not
accept the terms of such Preferred Shares, BIPC shall issue Class C Shares to the Subscriber pursuant to this Section 6.
7. Representations and Warranties
7.1 Canada HoldCo hereby represents and warrants to BIPC that:
7.1.1
it is validly organized and existing under the laws of the Province of Ontario;
7.1.2 it has the power, capacity and authority
to enter into this Equity Commitment Agreement and to perform its duties and obligations hereunder;
7.1.3 it has taken all necessary action to authorize the execution, delivery and performance of
this Equity Commitment Agreement;
7.1.4 the execution and delivery of this Equity
Commitment Agreement by it and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its articles, by-laws, constituent documents or other organizational documents;
7.1.5 no authorization, consent or approval, or filing with or notice to any Person is required
in connection with the execution, delivery or performance by it of this Equity Commitment Agreement; and
7.1.6 this Equity Commitment Agreement constitutes a valid and legally binding obligation of it enforceable against it in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors' rights and remedies generally and (ii) general principles of equity, including standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity.
7.2 BIPC hereby represents and warrants to Canada HoldCo that:
7.2.1 it is validly organized and existing under the laws of the Province of British
Columbia;
7.2.2 it has the power, capacity and authority to enter into this Equity
Commitment Agreement and to perform its duties and obligations hereunder;
7.2.3 it has taken all necessary action to authorize the execution, delivery
and performance of this Equity Commitment Agreement;
7.2.4 the execution and delivery of
this Equity Commitment Agreement by it and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its articles, by-laws, constituent documents or other organizational documents;
7.2.5 no authorization, consent or approval, or filing with or notice to any Person is required
in connection with the execution, delivery or performance by it of this Equity Commitment Agreement; and
7.2.6 this Equity Commitment Agreement constitutes a valid and legally binding obligation of it enforceable against it in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors' rights and remedies generally and (ii) general principles of equity, including standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity.
8. Further Assurances
Each of the parties hereto shall promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may
reasonably require from time to time for the purpose of giving effect to this Equity Commitment Agreement and shall use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions
of this Equity Commitment Agreement.
9. Successors and Assigns
No party may assign its right or benefits under this Equity Commitment Agreement without the prior written consent of the other parties hereto provided that Canada HoldCo may assign its rights and
benefits under this Equity Commitment Agreement to any member of the BIP Group without obtaining the prior written consent of the other parties. This provision of this Equity Commitment Agreement shall enure to the benefit of and be binding on
the parties to this Equity Commitment Agreement and their respective successors and assigns.
10. Notice
Any notice
or other communication required or permitted to be given hereunder shall be in writing and shall be given by prepaid mail, by facsimile or other means of electronic communication or by delivery as hereafter provided. Any such notice or other
communication, if mailed by prepaid mail at any time other than during a general discontinuance of postal service due to strike, lockout or otherwise, shall be deemed to have been received on the fourth Business Day after the post-marked date
thereof, or if sent by facsimile or other means of electronic communication, shall be deemed to have been received on the Business Day following the sending, or if delivered by hand shall be deemed to have been received at the time it is delivered
to the applicable address noted below either to the individual designated below or to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of change of address shall also be governed
by this section. In the event of a general discontinuance of postal service due to strike, lock-out or otherwise, notices or other communications shall be delivered by hand or sent by facsimile or other means of electronic communication and
shall be deemed to have been received in accordance with this section. Notices and other communications shall be addressed as follows:
(a) if to Canada HoldCo:
Brookfield Place, Suite 300
181 Bay Street
Toronto, ON M5J 2T3
(b) if to BIPC:
Brookfield Infrastructure Corporation
Brookfield Place
250 Vesey
Street, 15th Floor
New York NY 10281
11. Counterparts
This Equity Commitment Agreement may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, taken together, shall constitute one and the
same instrument.
[NEXT PAGE IS THE SIGNATURE PAGE]
IN
WITNESS WHEREOF the parties hereto have executed this agreement as of the date first written above.
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BROOKFIELD INFRASTRUCTURE HOLDINGS (CANADA) INC.
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By:
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/s/ Edward Kress
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Name: Edward Kress
Title: Director
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BROOKFIELD INFRASTRUCTURE CORPORATION
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Vice President
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[Equity Commitment Agreement – Signature Page]
BIF
III NORONHA AIV LLC
- and -
BIP NORONHA AIV LLC
- and -
BROOKFIELD INFRASTRUCTURE CORPORATION
VOTING AGREEMENT
Effective
March 30, 2020
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TABLE OF CONTENTS
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ARTICLE 1 INTERPRETATION
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2
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1.1 Definitions
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2
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1.2 Headings and Table of Contents
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3
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1.3 Interpretation
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3
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1.4 Invalidity of Provisions
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4
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1.5 Entire Agreement
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4
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1.6 Waiver Amendment
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4
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1.7 Governing Law
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5
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ARTICLE 2 VOTING
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5
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2.1 Voting at the Direction of BIPC
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5
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2.2 General Guidelines
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5
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2.3 Standard of Care
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6
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES
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6
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3.1 Representations and Warranties of BIF III AIV
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6
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3.2 Representations and Warranties of BIP AIV
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7
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3.3 Representations and Warranties of BIPC
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7
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ARTICLE 4 TERMINATION
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8
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4.1 Term
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8
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4.2 Termination
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8
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ARTICLE 5 GENERAL PROVISIONS
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8
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5.1 Assignment
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8
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5.2 Enurement
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9
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5.3 Notices
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9
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5.4 Further Assurances
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10
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5.5 Counterparts
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10
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- i -
VOTING AGREEMENT
THIS AGREEMENT made effective as of the 30th day of March, 2020.
AMONG:
BIF III NORONHA AIV LLC
("BIF III AIV")
- and -
BIP NORONHA AIV
LLC
("BIP AIV")
- and -
BROOKFIELD INFRASTRUCTURE CORPORATION
("BIPC")
RECITALS:
A. WHEREAS, BIF III AIV and BIP AIV
own approximately 74.69% and 25.31%, respectively, of the limited liability company interests (the "LLC Interests") of ValveCo (BIII) LLC ("ValveCo");
B. AND WHEREAS, ValveCo has entered into the Master Governance Agreement with each of PipeCo (B) LLC, GasCo (S) LLC and LineCo (C) LLC (together with ValveCo,
collectively, the "Companies"), which governs, among other things, certain voting arrangements relating thereto;
C. AND WHEREAS, that certain voting agreement by and among Brookfield Infrastructure Partners L.P. ("BIP"), BIF III AIV and BIP AIV, dated April 4, 2017 is being
terminated effective as of the date hereof upon BIP ceasing to own, directly or indirectly, through wholly-owned Affiliates of BIP or Brookfield Infrastructure L.P., any interest in ValveCo pursuant to Section 4.2 thereof;
D. AND WHEREAS, BIF III AIV and BIP AIV have each determined that it is necessary and
advisable for BIPC or BIPC's designated Affiliates, each an affiliate of BIF III AIV and BIP AIV, to have control over the voting of the LLC Interests and voting interests of the Companies;
E. AND WHEREAS, BIF III AIV, BIP AIV and BIPC wish to enter into this Agreement to
govern their relationship with respect to the voting of the LLC Interests and voting interests of the Companies;
NOW THEREFORE, effective as of the Effective Date, in consideration of one
dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties covenant and agree, each with the other, as follows:
ARTICLE
1
INTERPRETATION
1.1 Definitions
In this Agreement, except where the context otherwise requires, the following terms will have the following meanings:
(a) "Affiliate" means with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such
Person, or is under common Control of a third Person;
(b) "Agreement" means this Voting
Agreement;
(c) "BIF III Funds" has the meaning ascribed thereto in Section 2.3.
(d) "BIF III GP" has the meaning ascribed thereto in Section 2.3.
(e) "Business Day" means every day except a Saturday or Sunday, or a day which is a
statutory or civic holiday in the State of Delaware;
(f) "Control" means the control
by one Person of another Person in accordance with the following: a Person ("A") controls another Person ("B") where A has the power to determine the management and policies of B by contract or status (for example, the status of A being the general
partner or the manager of B) or by virtue of the beneficial ownership of or control over a majority of the voting interests in B; and, for greater certainty and without limitation, if A owns or has control over shares or other securities to which
are attached more than 50% of the votes permitted to be cast in the election of directors to the Governing Body of B or A is the general partner of B, a limited partnership, then in each case A Controls B for this purpose; and the term
"Controlled" has the corresponding meaning;
(g) "Effective Date" means March 30,
2020;
(h) "Governing Body" means: (i) with respect to a corporation or limited company,
the board of directors of such corporation or limited company; (ii) with respect to a limited liability company, the manager(s), director(s) or managing partner(s) of such limited liability company; (iii) with respect to a partnership, the board,
committee or other body of each general partner or managing partner of such partnership that serves a similar function (or if any such general partner or managing partner is itself a partnership, the board, committee or other body of such general or
managing partner's general or managing partner that serves a similar function); and (iv) with respect to any other Person, the body of such Person that serves a similar function, and in the case of each of (i) through (iv) includes any committee or
other subdivision of such body and any Person to whom such body has delegated any power or authority, including any officer or managing director;
(i) "Master
Governance Agreement" means that certain Master Governance Agreement, dated as of April 4, 2017, among the Companies and other parties thereto from time to time, as the same may be amended or modified from time to time;
(j) "Person" means any natural person, partnership, limited partnership, limited
liability partnership, joint venture, syndicate, sole proprietorship, company or corporation (with or without share capital), limited liability corporation, unlimited liability company, joint stock company, unincorporated association, trust,
trustee, executor, administrator or other legal personal representative, regulatory body or agency, government or governmental agency, authority or entity however designated or constituted, and pronouns have a similarly extended meaning; and
(k) "Term" has the meaning ascribed thereto in Section 4.1.
1.2 Headings and Table of Contents
The inclusion of headings and a table of contents in this Agreement are for convenience of reference only and will not affect the construction or interpretation hereof.
1.3 Interpretation
In this
Agreement, unless the context otherwise requires:
(a) words importing the singular shall
include the plural and vice versa, words importing gender shall include all genders or the neuter, and words importing the neuter shall include all genders;
(b) the words "include", "includes", "including", or any variations thereof, when following any general term or statement, are not to be construed as limiting the general term or
statement to the specific items or matters set forth or to similar items or matters, but rather as referring to all other items or matters that could reasonably fall within the broadest possible scope of the general term or statement;
(c) references to any Person include such Person's successors and permitted assigns;
(d) except as otherwise provided in this Agreement, any reference in this Agreement to a statute,
regulation, policy, rule or instrument shall include, and shall be deemed to be a reference also to, all rules and regulations made under such statute, in the case of a statute, all amendments made to such statute, regulation, policy, rule or
instrument, and any statute, regulation, policy, rule or instrument that may be passed which has the effect of supplementing or superseding the statute, regulation, policy, rule or instrument so referred to;
(e) any reference to this Agreement or any other agreement, document or instrument shall be
construed as a reference to this Agreement or, as the case may be, such other agreement, document or instrument as the same may have been, or may from time to time be, amended, varied, replaced, amended and restated, supplemented or otherwise
modified;
(f) in the event that any day on which any amount is to be determined or any action is required
to be taken hereunder is not a Business Day, then such amount shall be determined or such action shall be required to be taken at or before the requisite time on the next succeeding day that is a Business Day; and
(g) except where otherwise expressly provided, all amounts in this Agreement are stated and shall
be paid in U.S. currency.
1.4 Invalidity of Provisions
Each provision contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction
will not affect the validity or enforceability of any other provision hereof. To the fullest extent permitted by applicable law, the parties waive any provision of law which renders any provision of this Agreement invalid or unenforceable in any
respect. The parties will engage in good faith negotiations to replace any provision which is declared invalid or unenforceable with a valid and enforceable provision, the economic effect of which comes as close as possible to that of the invalid or
unenforceable provision which it replaces.
1.5 Entire Agreement
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement. There are no warranties, conditions, or representations (including any that
may be implied by statute) and there are no agreements in connection with such subject matter except as specifically set forth or referred to in this Agreement. No reliance is placed on any warranty, representation, opinion, advice or assertion of
fact made either prior to, contemporaneous with, or after entering into this Agreement, or any amendment or supplement hereto, by any party to this Agreement or its directors, officers, employees or agents, to any other party to this Agreement or
its directors, officers, employees or agents, except to the extent that the same has been reduced to writing and included as a term of this Agreement, and none of the parties to this Agreement has been induced to enter into this Agreement or any
amendment or supplement by reason of any such warranty, representation, opinion, advice or assertion of fact. Accordingly, there will be no liability, either in tort or in contract, assessed in relation to any such warranty, representation, opinion,
advice or assertion of fact, except to the extent contemplated above.
1.6 Waiver
Amendment
Except as expressly provided in this Agreement, no amendment or waiver of this Agreement will be binding unless executed in writing by the party to be bound thereby. No waiver of
any provision of this Agreement will constitute a waiver of any other provision nor will any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided. A party's failure or delay in exercising any
right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.
1.7 Governing Law
This
Agreement, all questions concerning the construction, interpretation and validity of this Agreement, the rights and obligations of the parties hereto, all claims or causes of action that may be based upon, arise out of or related to this Agreement
and the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon or arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to
enter this Agreement) shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether in New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than New York. Each party irrevocably attorns and submits to the exclusive jurisdiction of the courts situated in the City of New York in the Borough of Manhattan and waives objection
to the venue of any proceeding in such court or any argument that such court provides an inconvenient forum.
ARTICLE 2
VOTING
2.1 Voting at the Direction of BIPC
Each of BIF III AIV and BIP AIV agrees that it will vote (and it will cause any other entity that it Controls to vote) or otherwise exercise rights with respect to the LLC Interests and the voting
interests of the Companies in accordance with the direction of BIPC (or its designated Affiliates) with respect to the approval or rejection of the following matters relating to ValveCo and the other Companies (as applicable):
(a) in favor of the election of a majority of directors (or their equivalent, if any) approved by
BIPC (or its designated Affiliates);
(b) any sale of all or substantially all of its
assets;
(c) any merger, amalgamation, consolidation, business combination or other material
corporate transaction, except in connection with any internal reorganization that does not result in a change of control;
(d) any plan or proposal for a complete or partial liquidation or dissolution, or any reorganization or any case, proceeding or action seeking relief under any existing laws or
future laws relating to bankruptcy or insolvency;
(e) any amendment to the limited liability
company agreement of ValveCo or the Master Governance Agreement; and
(f) any commitment or
agreement to do any of the foregoing.
2.2 General Guidelines
For purposes of Section 2.1, BIPC (or its designated Affiliates) may provide written direction to BIF III AIV and BIP AIV with respect to the approval or rejection of any matter in the form of
general guidelines, policies, procedures, delegation or similar practices in which case no approval or direction will be required by BIF III AIV or BIP AIV. Any such general guidelines, policies, procedures, delegations or similar practices may be
modified by BIPC or its designated Affiliates in its discretion, as applicable, in accordance with the terms hereof.
2.3 Standard of
Care
BIPC agrees that it (or its designated Affiliates) will exercise its powers and discharge its rights under this Agreement having regard to the standard of care applicable to Brookfield
Infrastructure Fund III GP LLC ("BIF III GP") in its capacity as general partner of the entities that comprise the Brookfield Infrastructure Fund III family of funds ("BIF III Funds"), taking into account the fiduciary duties owed by
BIF III GP to the investors of the BIF III Funds as a whole (as such fiduciaries duties may be modified by the BIF III Funds governing documents).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of BIF III AIV
BIF III AIV hereby represents and warrants to BIPC and BIP AIV that:
(a) it is validly organized and existing under the relevant laws governing its formation and existence;
(b) it has the power, capacity and authority to enter into this Agreement and to perform its
duties and obligations hereunder;
(c) it has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(d) the execution and delivery of this
Agreement by it and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its articles, by-laws, constituent documents or other organizational documents;
(e) no authorization, consent or approval, or filing with or notice to any Person is required in
connection with the execution, delivery or performance by it of this Agreement; and
(f) this Agreement constitutes a valid and legally binding obligation of it enforceable against
it in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors' rights and remedies generally; and
(ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at
law or in equity.
3.2 Representations and Warranties of BIP AIV
BIP AIV hereby represents and warrants to BIF III AIV and BIPC that:
(a) it is validly organized and existing under the relevant laws governing its formation and existence;
(b) it has the power, capacity and authority to enter into this Agreement and to perform its
duties and obligations hereunder;
(c) it has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(d) the execution and delivery of this
Agreement by it and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its articles, by-laws, constituent documents or other organizational documents;
(e) no authorization, consent or approval, or filing with or notice to any Person is required in
connection with the execution, delivery or performance by it of this Agreement; and
(f) this Agreement constitutes a valid and legally binding obligation of it enforceable against
it in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors' rights and remedies generally, and (ii)
general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law
or in equity.
3.3 Representations and Warranties of BIPC
BIPC hereby represents and warrants to BIF III AIV and BIP AIV that:
(a) it is validly organized and existing under the relevant laws governing its formation and existence;
(b) it has the power, capacity and authority to enter into this Agreement and to perform its
duties and obligations hereunder;
(c) it has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(d) the execution and delivery of this
Agreement and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its articles, by-laws, constituent documents or other organizational documents;
(e) no authorization, consent or approval, or filing with or notice to any Person is required in
connection with the execution, delivery or performance by it of this Agreement; and
(f) this Agreement constitutes a valid and legally binding obligation of it enforceable against
it in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors' rights and remedies generally; and
(ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at
law or in equity.
ARTICLE 4
TERMINATION
4.1 Term
The term of this
Agreement ("Term") will begin on the Effective Date and will continue in full force and effect until terminated in accordance with Section 4.2.
4.2 Termination
The rights and obligations of the parties to this Agreement will terminate and no longer be of any
effect: (i) at such time that BIPC ceases to own, directly or indirectly, through its wholly-owned Affiliates, any interest in ValveCo; (ii) upon 30 days' notice given by BIPC or its designated Affiliates; or (iii) at such time that any party
provides notice that such party has reasonably determined that, as a result of applicable law, rule or regulation and through no fault of its own, continued participation in this Agreement would have a material adverse effect on such party.
ARTICLE 5
GENERAL PROVISIONS
5.1 Assignment
(a) None of the rights or obligations hereunder shall be assignable or transferable by any party
without the prior written consent of the other party provided that BIPC may delegate its approval rights under Section 2.1 of this Agreement to any wholly-owned Affiliate of BIPC, without obtaining prior written consent of each of BIF III AIV and
BIP AIV.
(b) Any purported assignment of this Agreement in violation of this Section 5.1
shall be null and void.
5.2 Enurement
This Agreement
will enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
5.3 Notices
Any notice or other communication required or permitted to be given hereunder will be in writing and
will be given by prepaid first-class mail, by facsimile or other means of electronic communication or by hand-delivery as hereinafter provided. Any such notice or other communication, if mailed by prepaid first-class mail at any time other than
during a general discontinuance of postal service due to strike, lockout or otherwise, will be deemed to have been received on the fourth Business Day after the post-marked date thereof, or if sent by facsimile or other means of electronic
communication, will be deemed to have been received on the Business Day following the sending, or if delivered by hand will be deemed to have been received at the time it is delivered to the applicable address noted below either to the individual
designated below or to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of change of address will also be governed by this section. In the event of a general discontinuance of postal
service due to strike, lock-out or otherwise, notices or other communications will be delivered by hand or sent by facsimile or other means of electronic communication and will be deemed to have been received in accordance with this section. Notices
and other communications will be addressed as follows:
(a) if to BIF III
AIV:
Brookfield Place
250 Vesey Street, 15th Floor
New York, New York 10281-1023
Attention: Fred Day
Facsimile: 212-417-7182
(b) if
to BIP AIV:
Brookfield Place
250 Vesey Street, 15th Floor
New York, New York 10281-1023
Attention: Fred Day
Facsimile: 212-417-7182
(c) if to
BIPC:
Brookfield Infrastructure Corporation
P.O. Box 11117
1500 Royal Centre, 1055 West Georgia Street
Vancouver, British Columbia V6E
4N7
Attention: Secretary
or to such other addresses as a party may from time to time notify the others in accordance with this Section
5.5.
5.4 Further Assurances
Each of the parties hereto will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may
reasonably require from time to time for the purpose of giving effect to this Agreement and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this
Agreement.
5.5 Counterparts
This Agreement may be signed in counterparts and each of such counterparts will constitute an original document and such counterparts, taken together, will constitute one and the same
instrument.
[Remainder of page was intentionally left blank Signature page follows.]
IN WITNESS WHEREOF the parties have executed this Agreement as of the Effective Date.
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BIF III NORONHA AIV LLC
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By:
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/s/ Fred Day
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Name: Fred Day
Title: President
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BIP NORONHA AIV LLC
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By:
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/s/ Fred Day
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Name: Fred Day
Title: President
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BROOKFIELD INFRASTRUCTURE CORPORATION
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Director
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BROOKFIELD INFRASTRUCTURE PARTNERS L.P.
FIRST AMENDMENT TO THE
AMENDED AND RESTATED MASTER SERVICES AGREEMENT
THIS AMENDMENT (the "Amendment") to the Amended and Restated Master Services Agreement, dated as of March 13, 2015 (the "Agreement") among Brookfield Asset Management Inc.
("BAM"), Brookfield Infrastructure Partners L.P. (the "BIP Partnership") and others is made as of the 31st day of March, 2020 by the undersigned. Capitalized terms used but not defined herein shall have the meanings
set forth in the Agreement.
WHEREAS, on March 9, 2020, the board of directors of the general partner of the BIP Partnership approved a special distribution (the "Special
Distribution") of class A subordinate voting shares ("BIPC Shares") of Brookfield Infrastructure Corporation ("BIPC") to the holders of limited partnership units of the BIP Partnership ("Units") to be completed on the date
hereof;
AND WHEREAS, the BIPC Shares will be structured with the intention of providing holders with an economic return equivalent to the Units, including identical distributions, and be
exchangeable for Units on a one-for-one basis (subject to adjustment) (or for the cash equivalent, at the election of BIPC) in accordance with the terms of the BIPC Shares;
AND
WHEREAS, the parties desire to amend the Agreement in connection with the Special Distribution to reflect the addition of BIPC as a Service Recipient and make certain other amendments to the terms and conditions of the Agreement as set out
herein;
NOW THEREFORE,
1. Amendments to Article 1
Section
1.1 is hereby amended by adding the following definitions:
1.1.13.1 "BIPC" has the meaning assigned thereto in the
recitals;
1.1.21 "Class A Shares" means Class A shares of BIPC;
1.1.53.1 "Rights Agreement" has the meaning assigned thereto in Section 7.6.3;
Section 1.1.60 is hereby deleted in its entirety and replaced with the following:
"Service Recipient" means the BIP Partnership, the
Infrastructure Partnership, CanHoldco, US Holdco, BIP Bermuda I, BIPC and, at the option of the BIP Partnership, any entity in which any of the foregoing or any combination of the foregoing holds, directly or indirectly, all of the common equity or
equivalent interests, excluding, for greater certainty, any Operating Entities;
2. Amendments to Article 7
Article 7 is hereby amended by adding the following provision after Section 7.6.2:
7.6.3 The BIP Partnership will reimburse BAM for any and all amounts actually paid to the rights agent (i) pursuant to the Rights
Agreement between BAM and Wilmington Trust, National Association, dated as of March 31, 2020 (the "Rights Agreement"), including, but not limited to, in respect of services rendered, out-of-pocket expenses, counsel fees and other
disbursements incurred in the administration and execution of the Rights Agreement and the exercise and performance of the rights agent's duties thereunder, and (ii) in respect of any indemnification provided to the rights agent pursuant to the
Rights Agreement.
3. Amendments to Article 8
Article 8 is hereby deleted in its entirety and replaced with the following:
ARTICLE 8
BAM'S OBLIGATION AND CONSENT RIGHT
8.1 Provision of Services to the Service Recipients
BAM's sole
obligation pursuant to this Agreement shall be to use its commercially reasonable efforts to cause its Subsidiaries (other than any member of the BIP Group) to provide Services to the Service Recipients, as applicable, in accordance with the
direction of the Service Providers.
8.2 Consent to Issuance of Class A Shares
Prior to the issuance by BIPC of any Class A Shares, BIPC shall obtain the written consent of BAM, which consent shall be provided or withheld in BAM's sole discretion, provided that BAM shall
deliver its written decision on whether or not to provide such consent within 10 Business Days of receiving a written request from BIPC, in respect of such issuance. BAM shall be entitled to such consent right for as long as BAM is a party to the
Rights Agreement.
4. Amendments to Article 12
Article 12 is hereby amended by adding the following provision after Section 12.5.7:
12.5.7.1 if to BIPC:
Brookfield Infrastructure Corporation
Brookfield Place
250 Vesey
Street, 15th Floor
New York, NY 10281-1023
USA
Attention: Secretary
Telecopier number: 212-417-7196
5. Effective Date
This Amendment shall be effective upon the date first written above.
6. Governing Law
This Amendment shall be governed by
and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
7. General
(a) Except as modified herein, all terms and conditions of the Agreement shall remain in full
force and effect.
(b) This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which shall be construed together as one agreement.
[Remainder of this page left blank intentionally.]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
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BROOKFIELD ASSET MANAGEMENT INC.
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Managing Director
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BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED
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By:
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/s/ Jane Sheere
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Name: Jane Sheere
Title: Secretary
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BROOKFIELD INFRASTRUCTURE L.P., by its managing general partner, BROOKFIELD INFRASTRUCTURE PARTNERS L.P., by its general partner,
BROOKFIELD INFRASTRUCTURE PARTNERS LIMITED
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By:
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/s/ Jane Sheere
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Name: Jane Sheere
Title: Secretary
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BROOKFIELD INFRASTRUCTURE HOLDINGS (CANADA) INC.
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By:
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/s/ Edward Kress
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Name: Edward Kress
Title: Director
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BROOKFIELD INFRASTRUCTURE US HOLDINGS I CORPORATION
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By:
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/s/ Edward Kress
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Name: Edward Kress
Title: Director
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BIP BERMUDA HOLDINGS I LIMITED
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By:
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/s/ Jane Sheere
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Name: Jane Sheere
Title: Secretary
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BIP BERMUDA HOLDINGS V LIMITED
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By:
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/s/ Jane Sheere
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Name: Jane Sheere
Title: Secretary
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BROOKFIELD INFRASTRUCTURE CORPORATION
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Vice President
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BROOKFIELD INFRASTRUCTURE GROUP L.P., by its general partner, BROOKFIELD INFRASTRUCTURE GROUP G.P. INC.
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Managing Director
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BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISER (CANADA), L.P., by its general partner, BROOKFIELD PRIVATE FUNDS HOLDINGS
INC.
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By:
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/s/ Aaron Kline
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Name: Aaron Kline
Title: Managing Director
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BROOKFIELD ASSET MANAGEMENT (BARBADOS) INC.
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By:
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/s/ Gregory McConnie
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Name: Gregory McConnie
Title: Director
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BROOKFIELD GLOBAL INFRASTRUCTURE ADVISOR LIMITED
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By:
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/s/ Philippa Elder
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Name: Philippa Elder
Title: Director
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BROOKFIELD INFRASTRUCTURE GROUP (AUSTRALIA) PTY LIMITED
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By:
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/s/ Michael Ryan
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Name: Michael Ryan
Title: Managing Director and Counsel
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Exhibit 10.13
CODE OF BUSINESS CONDUCT AND ETHICS
March 2020
SUMMARY OF THE CODE’S
PRINCIPLES1
PROTECTING THE
COMPANY’S ASSETS, RESOURCES AND DATA
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•
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We often have sensitive confidential information about Brookfield, about other companies, about our Clients (as
defined herein) and investors, and about our directors, officers and employees; preserving the integrity of this information is vital to our business and reputation and is necessary to meet our obligations under data protection laws.
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ACCURACY OF BOOKS AND RECORDS AND
PUBLIC DISCLOSURES
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•
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We should take care that our books and records are accurate and that all of our business transactions are
properly authorized.
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•
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As a public company, we have duties to our shareholders and must ensure that our communications and other
disclosures to the market are true and accurate.
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DUTIES TO STAKEHOLDERS
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•
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In asset management, one’s reputation is everything and we should act responsibly in dealings with our
securityholders, customers, Clients, investors, suppliers, other stakeholders and competitors.
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•
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We have obligations to our Clients and must manage their capital as though it were our own.
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COMMUNICATIONS AND MEDIA
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•
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In this digital era in which we operate, be careful in your written communications made over company information
systems, such as email, as this is a permanent record.
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•
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You must ensure that any of your online activities, including your use of online social media, are appropriate
and reflect well on Brookfield.
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CONFLICTS OF INTEREST AND
PERSONAL BEHAVIOR
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•
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Brookfield is a global brand and as a representative of the company your personal behavior must be consistent
with our values.
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•
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As a steward of third-party capital, be cognizant that we face a heightened risk that one’s personal
interests may conflict with or appear to conflict with the interests of the company.
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POSITIVE WORK
ENVIRONMENT
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•
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For everyone to do their best work on behalf of the company, we should all do our part to maintain our respectful
work environment where everyone feels safe and productive.
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•
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Our success is dependent on establishing a workplace culture free from discrimination, violence, harassment and
other negative influences.
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COMPLIANCE WITH LAWS, RULES,
REGULATIONS AND POLICIES
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•
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We operate in many jurisdictions and are subject to different laws, rules and regulations; you need to be aware
of the laws that apply to your activities so that you can comply with them; ignorance of the law is no excuse.
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•
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The company has corporate policies that you must be familiar with, as they govern your trading activities,
business practices and other conduct while at Brookfield.
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1
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These principles are for summary purposes only. For more detailed information on each of these items consult
the Code attached.
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Code of Business Conduct and Ethics – March 2020
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1
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FREQUENTLY ASKED QUESTIONS
WHY DO WE HAVE A CODE?
The Code serves as a guide for how you should conduct yourself as a member of the Brookfield team. Preserving our corporate culture and ensuring compliance
with legal, regulatory and fiduciary duties is vital to the organization and following the Code helps us do that.
WHO
MUST FOLLOW THE CODE?
All directors, officers, employees and temporary workers of
Brookfield Asset Management Inc., its wholly-owned subsidiaries, and certain publicly-traded controlled affiliates who have not adopted their own Code of Conduct or other policies that are consistent with the provisions of this Code.
WHAT ARE YOUR RESPONSIBILITIES?
You have two responsibilities. First, you must follow every aspect of the Code and certify your commitment each year. Second, if you suspect someone may be
violating the Code or the policies referred to herein, you have an obligation to report it. To make a report, follow the section of the Code: “Reporting Potential Code Violations.”
HOW WILL I KNOW IF THERE IS A
PROBLEM?
The Code attempts to deal with the most common issues that you may encounter, but it cannot address every question that may
arise. When you’re not sure what to do, ask yourself the following questions:
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Does it feel like the wrong thing to do?
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•
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Would you feel uncomfortable if others knew about it?
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•
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Will it have the potential to create a negative perception of you or the company?
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•
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Do you have a personal interest that has the potential to conflict with the company’s interest?
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If you answer “yes” to any of these questions your proposed conduct may violate the Code and you should ask for help.
HOW SHOULD I ASK FOR HELP?
If you have questions about the Code, any policies or guidelines referred to herein, or about the best course of action to take in a particular situation, you
should seek guidance from your supervisor or a member of Brookfield’s Legal & Regulatory Group (a list of these members and their contact information is set forth on Schedule A).
WHAT IF I WOULD LIKE TO MAKE AN
ANONYMOUS REPORT?
You may make an anonymous report by contacting the company’s reporting hotline, which is operated
by an independent third-party and is available 24 hours a day, 7 days a week. The Reporting Hotline phone numbers by jurisdiction are set forth on Schedule A. If you choose to make an anonymous report, your anonymity will be protected to the fullest
extent possible as permitted by law. Keep in mind, however, that maintaining your anonymity may limit the company’s ability to investigate your concerns.
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Code of Business Conduct and Ethics – March 2020
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WHAT ARE THE CONSEQUENCES
FOR VIOLATING THE CODE?
Violations of the Code or the policies and guidelines incorporated
by reference herein, can vary in its consequences. If you’re an employee, it could result in a reprimand or other disciplinary action, including the termination of your employment at the company for cause. If you’re a director, a violation
may necessitate your resignation. Certain violations of the Code also contravene applicable laws and therefore can have severe consequences outside of Brookfield. Depending on your actions, failing to comply with the Code could lead to civil or
criminal prosecution, which could result in substantial fines, penalties and/or imprisonment.
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Code of Business Conduct and Ethics – March 2020
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3
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TABLE OF CONTENTS
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Page
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INTRODUCTION
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5
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STANDARDS OF BUSINESS CONDUCT
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5
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PROTECTING THE COMPANY’S ASSETS, RESOURCES AND DATA
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6
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ACCURACY OF BOOKS AND RECORDS AND PUBLIC DISCLOSURES
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8
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DUTIES TO STAKEHOLDERS
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8
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COMMUNICATIONS AND MEDIA
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9
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CONFLICTS OF INTEREST AND PERSONAL BEHAVIOR
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10
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POSITIVE WORK ENVIRONMENT
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11
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COMPLIANCE WITH LAWS, RULES, REGULATIONS AND POLICIES
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12
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REPORTING POTENTIAL CODE VIOLATIONS
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15
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DISCIPLINARY ACTION FOR CODE VIOLATIONS
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16
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STATEMENT OF COMPLIANCE
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16
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WAIVERS
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17
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AMENDMENTS
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17
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SCHEDULE A – Contact Information
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Code of Business Conduct and Ethics – March 2020
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4
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INTRODUCTION
This Code of Business Conduct and Ethics (“the Code”) applies to all directors, officers, employees and temporary workers2 (collectively, “you”) of (i) Brookfield Asset Management Inc. and its wholly-owned subsidiaries (“Brookfield Asset Management”); (ii) certain publicly-traded controlled
affiliates (Brookfield Business Partners LP, Brookfield Infrastructure Partners LP, Brookfield Property Partners LP and Brookfield Renewable Partners LP) (“Listed Entities”); and (iii) any other controlled affiliate of Brookfield
Asset Management (together with the Listed Entities, the “Controlled Affiliates,” and collectively with Brookfield Asset Management, “we,” “us,” “our,” “Brookfield” or the “company”),
unless such Controlled Affiliate has adopted its own Code of Conduct and/or other policies that are consistent with the provisions of this Code.3
STANDARDS OF BUSINESS CONDUCT
Brookfield seeks to foster and maintain a reputation for honesty, openness, trust, integrity and professionalism. The confidence and trust placed in Brookfield
by our Clients and investors is something we value greatly and endeavor to protect. In many respects, our reputation is our most vital business asset. Accordingly, all of our activities should be conducted with honesty and integrity and in
compliance with applicable legal and regulatory requirements.
We have adopted the Code and related policies and procedures in order to preserve our
culture and to ensure compliance with legal, regulatory and fiduciary requirements applicable to our activities. We expect and require that you meet the letter and spirit of the Code (and related policies and procedures). This Code incorporates by
reference the following corporate policies and programs which should be read in conjunction with the Code:
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Advisory Records Retention Policy;4
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•
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Anti-Bribery and Corruption Policy;
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•
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Data Protection Policy and Data Protection Program;
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•
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Enterprise Information Security Policy;
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•
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Personal Trading Policy;
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•
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Positive Work Environment Policy;
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2
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For purposes of the Code, “temporary workers” include
non-full-time employees and consultants and contractors etc. that work on our premises. The business group retaining a temporary worker is responsible for ensuring that the temporary worker certifies their
commitment to comply with the Code.
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3
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Where a Controlled Affiliate has adopted its own Code of Conduct and/or policies that are consistent with the
provisions of this Code, the Controlled Affiliate’s directors, officers, employees and temporary workers follow those policies, and, in case of a conflict, the terms of that Code control. Where a Controlled Affiliate has not adopted their own
Code of Conduct and/or other policies that are consistent with the provisions of this Code, the Controlled Affiliate must review the Code and the policies in the context of their business to ensure that the Code and such policies are appropriate and
addresses all legal and regulatory requirements and risks applicable to their business.
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4
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For Access Persons and Investment Access Persons (each as defined in the Personal Trading Policy) only.
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Code of Business Conduct and Ethics – March 2020
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5
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•
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Travel and Entertainment Expense Policy;
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•
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U.S. and Canadian Political Contributions Policies; and
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PROTECTING THE COMPANY’S ASSETS, RESOURCES
AND DATA
The company’s assets are to be used for legitimate business purposes only.
The company’s assets are for business, not personal use. The company’s assets span many categories. Assets can be physical, tangible goods, such as
office supplies, furniture, computers or intangible items, such as intellectual property. You have a responsibility to safeguard the company’s assets from loss, damage, theft, misuse and waste. If you become aware of loss, damage, theft, misuse
or waste of our assets, or have questions about your proper use of them, you should speak with your supervisor. The company’s name (including its corporate letterhead and logo), facilities and relationships are valuable assets and must only be
used for authorized company business.
If you use the company’s assets for personal benefit or are otherwise wasteful with the company’s assets,
you may be in breach of your duty to the company. You have a responsibility not to abuse company resources for reimbursement. Any requests for reimbursement for authorized company expenses must be for legitimate business expenses. If you are unsure
whether a certain expense is legitimate, you should speak with your supervisor or refer to the company’s Travel and Entertainment Expense Policy.
Confidential information must be protected at all times.
We must protect confidential information in our possession - both information about us and information about other companies, and our Clients and investors.
Confidential information includes, but is not limited to, all confidential memos, notes, lists, records and other documents in your possession, in hard and soft copy. All of these are to be delivered to the company promptly after your employment
ceases or at any time upon the company’s request, and your obligation to protect this information continues after you leave the company. You must protect hard and soft copies of confidential information that are removed from the office
(e.g., to be worked with at home or at external meetings).
It is important to use discretion when discussing company business. This includes
respecting information barrier protocols and discussing company business only with those individuals at the company that have a “need to know” the information. Additionally, be careful not to discuss company business in public places such
as elevators, restaurants, and public transportation or when using your phone or email outside of the office. You should also be careful not to leave confidential information in unattended conference rooms or in public places where others can access
it. While at Brookfield, if you become aware of confidential information about the company or another entity that you know or suspect has been inadvertently disclosed, seek guidance from a member of the Legal & Regulatory Group before using
or acting upon this information.
Personal data held by or on behalf of the company must be used in compliance with data protection laws.
The company collects personal data regarding individuals both inside and outside the organization where we have the lawful basis for doing so.
This is necessary to effectively and efficiently administer
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Code of Business Conduct and Ethics – March 2020
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6
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and manage the operation of our business. Personal data includes, among other things,
sensitive personal, medical and financial information. In general, personal data will only be held by the company for as long as we have a need to retain it.
Collection and use of personal data are subject to various legal and regulatory requirements. You must take all reasonable steps to ensure that personal data
is kept confidential and accessed only by those individuals at the company that have a need to know this information to carry out their duties. In addition, if it is necessary to the conduct of business to disclose personal data to a third-party
(e.g., so that a third-party may provide services to the company or acquire an asset or business of the company) then you must ensure that such transfer complies with applicable legal and regulatory requirements. This may include ensuring the
third-party is subject to a written agreement which contains confidentiality obligations and, where relevant, other obligations which must be included under the data protection laws of certain jurisdictions in which we operate or have Clients or
investors. In all other cases, you may only disclose personal data pursuant to a legal or regulatory requirement.
In the ordinary course, the company
transfers personal data between jurisdictions in which the company operates, including outside the European Economic Area (“EEA”), United Kingdom and Singapore. If you transfer personal data outside the EEA, United Kingdom or Singapore,
then you must ensure that it is permissible for you to do so (e.g., consent has been given by the individual or an appropriate data transfer agreement has been signed). In addition, you should ensure that the personal data is protected in a
manner that is consistent with how personal data is protected by the company within these jurisdictions, and in any event in compliance with all applicable data protection laws.
You are responsible for ensuring that you understand and comply with our data protection/privacy policies. For more information about compliance with data
protection laws, refer to the company’s Data Protection Policy and related policies referred to in the Data Protection Program.
Intellectual property belongs to the company.
During the course of your employment, you may be involved in the creation, development or invention of intellectual property such as concepts, methods,
processes, inventions, confidential information and trade secrets, know-how, physical products, ideas, plans, programs, software, applications, code, works of authorship, trademarks, service marks and designs,
alone or jointly with others, including but not limited to the improvement of existing intellectual property belonging to the company. All such intellectual property and the rights therein shall be owned by the company and your moral rights to such
intellectual property, if any, will be waived. You are responsible for cooperating with the company and providing all necessary assistance, including the preparation and execution of any necessary documentation such as assignments and applications
to register rights before relevant government authorities on behalf of the company, to ensure that all intellectual property and related rights become or are recognized as the exclusive property of the company.
The documents of the company must be preserved.
It is critical that you help preserve our business records, follow the guidelines set forth in any document retention policies and comply with related legal
and regulatory requirements. Investment Access Persons and Access Persons should refer to the company’s Advisory Records Retention Policy for further details on the appropriate preservation of advisory records. If you are notified
that your documents are relevant to an anticipated or pending litigation, investigation or audit, you must follow the guidance set forth in the notification you receive from legal counsel regarding retention of documents.
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Code of Business Conduct and Ethics – March 2020
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7
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ACCURACY OF BOOKS AND
RECORDS AND PUBLIC DISCLOSURES
Ensure that the books and records of the company are
complete and accurate and that all business transactions are properly authorized.
The books and records of the company must reflect all its
transactions in order to permit the preparation of accurate financial statements. Employees must never conceal information from (i) an external auditor; (ii) an internal auditor; or (iii) an audit committee of the company. In
addition, it is unlawful for any person to fraudulently influence, coerce, manipulate or mislead an external auditor of the company.
The company’s
contracts and agreements govern our business relationships. Because the laws governing contracts and agreements are numerous and complicated we have put in place policies and procedures to ensure that any contract entered into by the company has the
appropriate level of approval. As a result, employees who enter into contracts or agreements on behalf of the company must have proper authorization to do so and, prior to their execution, these documents must be reviewed by legal counsel where
required by policy or practice. Consult a member of the Legal & Regulatory Group if you are unsure whether a contract requires review.
Ensure that the company provides full, true and plain public disclosure.
All employees who are responsible for the preparation of the company’s public disclosures, or who provide information as part of this process, must ensure
that public disclosures of information are made honestly and accurately. Employees must be aware of and report any of the following: (a) fraud or deliberate errors in the preparation, maintenance, evaluation, review or audit of any financial
statement or financial record; (b) deficiencies in, or noncompliance with, internal accounting controls; (c) misrepresentations or false statements in any public disclosure document, such as annual and quarterly reports, prospectuses,
information/proxy circulars and press releases; or (d) deviations from full, true and plain reporting of the company’s financial condition.
Additionally, each person who is in a financial reporting oversight role, and their Family Members,5 are
prohibited from obtaining any tax or other services from the external auditor, irrespective of whether the company or such person pays for the services.
DUTIES TO STAKEHOLDERS
Deal fairly with the company’s stakeholders.
You must deal fairly with the company’s security holders, customers, Clients, suppliers, other stakeholders and competitors. To preserve our reputation
and relationship with stakeholders, do not engage in any illegal or unethical conduct when dealing with stakeholders or competitors.
Manage Client
capital as though it were your own.
As a global asset manager, the company has fiduciary responsibilities in managing the assets of its Clients,
which include among others, private funds, listed issuers and separate accounts (collectively, “Clients”). You must be careful to avoid even the appearance of impropriety when dealing with Clients
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5
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For the purposes of this Code, “Family Members” are your spouse, partner or other family members who
live in the same dwelling as you.
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Code of Business Conduct and Ethics – March 2020
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8
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and prospective Clients, and investors (and prospective investors) in Client accounts,
or in performing any related activities. In this regard, you must avoid engaging in any activity that could result in an actual, potential or perceived conflict of interest and avoid any action that may be perceived as a breach of trust, unless such
activity is resolved in accordance with a framework that was fully and fairly disclosed to and approved by the relevant stakeholders in accordance with applicable legal and regulatory requirements. A “conflict of interest” for this purpose
occurs when the company’s interest inclines the company, consciously or unconsciously, or appears to incline the company to render advice that is not disinterested to our Clients or investors in Client accounts.
COMMUNICATIONS AND MEDIA
Use the company’s various forms of communication properly and appropriately.
All business matters that involve electronic, written communication must be conducted by employees on the company’s email system or through other systems
provided and approved by the company (such as Jabber). You must at all times use our e-mail, Internet, telephones and other forms of communication appropriately and professionally. Employees must comply with
our Enterprise Information Security Policy and all applicable policies. While we appreciate the need for limited use of these tools for personal purposes, your use should not be excessive or detract from your work. Employees should not email
business information to their personal email accounts or maintain a copy of business information on their personal computers or other non-work electronic devices. When using company-provided technologies, such
as computers, cell phones and voicemail, you should not expect that the information you send or receive is private. Your activity may be monitored to ensure these resources are used appropriately; please refer to the Employee Data Protection and
Privacy Notice.
Be cautious in your use of social media.
The company’s social media policy is that, unless you are expressly authorized, you are strictly prohibited from commenting, or posting about, or
otherwise discussing the company, its customers and Clients, its (and its Clients’) investors, its employees, and its securities, investments and other business matters on all social media forums, including, but not limited to, social networks,
chat rooms, wikis, virtual worlds and blogs (collectively, “social media”). You are a representative of Brookfield when engaging in online activities and you must ensure that your behavior online, including on social media, is appropriate
and consistent with our values. For further details on the appropriate use of social media, you should refer to the company’s Enterprise Information Security Policy.
Do not speak on behalf of the company unless authorized to do so.
As a public company, it is important to ensure our communications to the investing public are: (a) timely; (b) full, true and plain; and
(c) consistent and broadly disseminated in accordance with all applicable legal and regulatory requirements. You may not make public statements on Brookfield Asset Management’s behalf unless you have been designated as a
“Spokesperson” under its Disclosure Policy. Each Controlled Affiliate has its own policy regarding public disclosures, and if you are a director, officer or employee at one of these entities (or are acting on their behalf) you
should comply with such policy.
If a shareholder, financial analyst, member of the media or other third-party contacts you to request information, even
if the request is informal, do not respond to it unless you are authorized to do so. In this event, refer the request to your supervisor or forward the request to an individual at the company employed in investor relations or communications. For
further information, you should refer to the Disclosure Policy of Brookfield Asset Management or a Controlled Affiliate, as applicable.
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Code of Business Conduct and Ethics – March 2020
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9
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CONFLICTS OF INTEREST AND
PERSONAL BEHAVIOR
Exhibit personal behavior that reinforces a positive image of you and the company.
Your personal behavior, both inside and outside work, should reinforce a positive image of you, the company and its business activities. It is essential to use
good judgment in all your personal and business dealings. You should refrain from engaging in activities that could hurt the company’s reputation, or yours, and that could undermine the relationship of trust between you and the company or the
company and its Clients. Employees who have acted inappropriately may be subject to disciplinary action up to and including termination for cause.
Remember your duties to Brookfield when participating in outside personal interests; obtain permission before pursuing business activities outside the
scope of your role with the company
The company encourages directors and employees to be active participants in their community. While pursuing
personal, political, not-for-profit activities or other like activities, be mindful that your participation in any outside interest must not prevent you from adequately
discharging your duties to Brookfield and should not conflict with or otherwise be adverse to the company’s interests. In addition, ensure that when you are involved in these activities you are not seen to be speaking or acting on behalf of the
company without express authority.
“Outside Business Activities,” otherwise known as “OBAs” include any business activities outside
the scope of one’s role with the company, including any activity as an employee, independent contractor, sole proprietor, officer, director, or partner of another business organization, regardless of whether compensation is involved. Employees
must receive approval from their business unit and a member of the Legal & Regulatory Group prior to accepting an OBA Directors of the company must advise the Chair of their Board of Directors prior to taking on any OBAs. Prior approval is
not required to serve on boards of charities or small, private family holding companies that have no relation to the company. For greater clarity, approval is not needed to serve on the board of a family holding company which is an extension of
one’s personal business affairs; however, it is needed to serve on the board of a private operating business with significant operations. When in doubt whether you need to obtain permission, consult with a member of the Legal &
Regulatory Group.
Avoid situations in which your personal interests conflict with the interests of the company, its Clients or investors in Client
accounts.
A “conflict of interest” for this purpose occurs when a person’s private interest inclines the person, consciously or
unconsciously, or appears to incline the person to act in a manner which is not in the interests of the company. You may have a conflict of interest if you are involved in any activity that prevents you from performing your duties to the company
properly, or that may create a situation that could affect your ability to act objectively, effectively and in the best interests of the company, including due to among other things, personal interests or receipt of benefits from our relationships
with companies, business partners, counterparties, investment banks, brokerage firms, service providers, and other constituencies. Accordingly, you must place the company’s interest in any business matter ahead of any personal interest.
Remember that the company’s interest includes the company’s obligations to its Clients.
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The best way to judge whether you may have a conflict of interest is to ask yourself
whether a well-informed person would reasonably conclude that your interest could in any way influence your decision or performance in carrying out a duty on behalf of the company. To avoid conflicts of interest, identify potential conflicts when
they arise and contact internal legal counsel if you are unsure whether a conflict exists. Directors should consult with the Chair of their Board of Directors on conflicts matters. In addition, if you become aware of any conflict or potential
conflict of another director, officer or employee, you should consult with internal legal counsel or the Chair of your Board of Directors, as appropriate.
Do not take corporate opportunities as your own personal opportunities.
You are prohibited from taking personal advantage of a business or investment opportunity that you become aware of through your work at Brookfield. You owe a
duty to the company to advance its interests when the opportunity arises, and you must not compete with the company in any way. Additionally, your personal trading activities must comply with the company’s Personal Trading Policy.
POSITIVE WORK ENVIRONMENT
Be committed to our respectful work environment free from discrimination,6 violence7 and harassment.8
The company does not
tolerate workplace discrimination, violence or harassment. All directors, officers and employees must work to ensure that the company is a safe and respectful environment where high value is placed on integrity, fairness and respect. For more
information on the company’s commitment to its positive work environment, refer to the company’s Positive Work Environment Policy.
You have a duty to report discrimination, violence and harassment.
If you experience or become aware of what you believe to be discrimination, violence or harassment, you are expected to report it in accordance with the
“Reporting Potential Code Violations” section of the Code and/or in accordance with the Positive Work Environment Policy. Reports of discrimination, violence or harassment will be taken seriously and investigated. If you are found
to be discriminating against, acting or threatening to act violently towards, or harassing any individual at Brookfield, or if you knowingly condone the discrimination of, violence towards, or harassment of another individual, you will face
corrective action up to and including termination without notice and for cause.
We want to create a culture of reporting when it comes to discrimination,
violence and harassment, as reporting is essential for us as a company to stamp out these behaviors. While we reserve the right to take corrective action if you knowingly make a false accusation about an innocent party, you will not face retaliation
for making a good faith report or assisting in the investigation of a report.
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“Discrimination” means the differential treatment of an individual or group based on prescribed
characteristics protected by law. Prescribed characteristics generally include age, color, race, religion, sex, gender, marital status, ancestry, sexual orientation, national origin, disability.. It does not matter whether the discrimination is
intentional; it is the effect of the behavior that matters.
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“Violence” means an action (oral, written or physical) which causes, is intended to cause, could
reasonably be interpreted as a threat to cause, or is capable of causing death or bodily injury to oneself or others, or property damage.
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“Harassment” means conduct which is known or ought reasonably to be known to be unwelcome and
includes conduct (e.g., comments and actions) which would be perceived by a reasonable person as being hostile, humiliating or abusive or cause him/her torment. Harassment covers a wide range of conduct and includes sexual harassment,
bullying and psychological harassment. Harassment may occur in a variety of ways and may, in some circumstances, be unintentional, but regardless of intent, all harassment negatively affects individual work performance and our workplace as a whole.
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Be committed to ensuring the health and safety of fellow directors, officers and
employees.
We all have the right to work in an environment that is safe and healthy. In this regard, you must:
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comply strictly with all occupational, health and safety laws and internal procedures;
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not engage in illegal or dangerous behavior, including any acts or threats of violence;
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not possess, distribute or be under the influence of drugs while on company premises or when conducting company
business; and
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not possess or use weapons or firearms or any type of combustible material in the company’s facilities, or
at company-sponsored functions.
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If you or someone you know is in immediate danger of serious bodily harm, first call local law
enforcement authorities and then report the incident in accordance with the “Reporting Potential Code Violations” section of the Code and/or in accordance with the Positive Work Environment Policy.
Human Rights and Modern Day Slavery
We are committed to conducting business in an ethical and responsible manner, including by carrying out our activities in a manner that
respects and supports the protection of human rights through:
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the elimination of discrimination in employment;
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the prohibition of child and forced labour; and
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the eradication of harassment and physical or mental abuse in the workplace.
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We strive to embed these standards into all of our core business activities, including training, communications, contracts and due diligence
processes as appropriate. These practices extend to our interactions with our key suppliers and other business partners.
COMPLIANCE
WITH LAWS, RULES, REGULATIONS AND POLICIES
Know and
comply with all laws, rules, regulations and policies applicable to your position.
Our business is highly regulated, and the company is committed
to compliance with applicable laws, rules, regulations and policies. Each of us must recognize our personal obligations as individuals, to understand and comply with the laws, rules, regulations and policies that apply to us in the conduct of our
duties, including those that apply specifically to public companies, asset managers and investment advisers, as well as laws with broader applicability such as prohibitions on insider trading and other forms of market abuse.
Many of the company’s activities are governed by laws, rules, regulations and policies that are subject to change. If you have questions about the
applicability or interpretation of certain laws, rules, regulations or policies relevant to your duties at Brookfield, you should consult with the company’s internal legal counsel. In the event a local law, custom or practice conflicts with the
Code you must adhere to whichever is most stringent. If you know of any of our practices that may be illegal, you have a duty to report it. Ignorance of the law is not, in general, a defense to breaking the law. We expect you to make every
reasonable effort to become familiar with the laws, rules, regulations and policies affecting your activities and to comply with them. If you have any doubts as to the applicability or interpretation of any of the above, you should obtain advice
from the company’s internal legal counsel.
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Do not trade in the company’s securities and in any other publicly-traded
securities if you possess material non-public information.
While at Brookfield, you may have access to or
become aware of material non-public information,9 either about Brookfield Asset Management, a Controlled Affiliate or a related or unrelated publicly-traded
entity. You must not use this information to gain a financial advantage for yourself or others, either by way of making a trade for yourself, “tipping” others on the information (i.e., disclosing the information to others such as relatives
or friends), or otherwise. Doing so is not only a violation of the Code that will result in immediate termination for cause but is also a serious violation of securities laws and will expose any individuals involved to potential civil and criminal
prosecution.
Prohibitions on trading in Brookfield securities may apply when a Brookfield entity is in a quarterly blackout period relating to the
release of its earnings or when it is in a special blackout period. Information on blackout periods can be obtained via the company’s intranet.
If
you have questions about securities laws or the company’s internal trading policies and procedures, contact the company’s internal legal counsel or refer to the Personal Trading Policy.
Depending on your role at the company, you may have to pre-clear trades or avoid trading altogether.
There are certain categories of employees under Brookfield’s Personal Trading Policy – Investment Access Persons, Access Persons
and Insiders. Investment Access Persons are employees who are actively involved at Brookfield in the investments process or have regular and ongoing access to this process and/or input thereto. Access Persons are others at Brookfield who are
involved in our investment advisory business. Both Investment Access Persons and Access Persons are designated by Brookfield’s compliance group. A third category includes all employees who are physically situated in a Brookfield corporate
office with investment advisory activities, as designated by internal legal from time to time, who are not Investment Access Persons or Access Persons. These individuals are known as “Insiders.”
Insiders along with Access Persons must pre-clear their trades (and those of family members who live in the same
dwelling) in both Brookfield and non-Brookfield securities (i.e., all tradeable securities). All non-employee directors must
pre-clear trades in Brookfield securities only.
Investment Access Persons, and their family members who live in
the same dwelling, are generally prohibited from making personal trades in all non-Brookfield securities. Such persons must delegate their trades in non-Brookfield
securities to a blind trust or a third-party financial advisor who has full discretion over investment decisions. As a general matter, these types of accounts over which you have no discretion should be managed by arm’s length third-parties
that are not your family members.
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Information about an entity is “material” if there is a substantial likelihood that a reasonable
investor would consider the information important when deciding to buy, sell or hold that entity’s securities or if the information would reasonably be expected to result in a change in the market price or value of the securities. Information
is “non-public” until it has been generally disclosed to the public and adequate time has passed for the securities markets to analyze the information. If you are not sure whether information is
material or non-public, consult with Brookfield’s Legal & Regulatory Group or compliance department for guidance.
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For more information about trading preclearance and trading activities in third-party
discretionary accounts, refer to the company’s Personal Trading Policy.
Do not give or receive bribes, including “facilitation
payments.”
We value our reputation for conducting business with honesty and integrity. It is vital for us to maintain this reputation as it
generates confidence in our business by our stakeholders, which ultimately means it is good for business. We do not pay bribes in furtherance of our business, either directly or indirectly, and you are not permitted to pay bribes on our behalf or
authorize others to pay bribes on our behalf. This commitment comes from the highest levels of management and you must meet this standard. A bribe is anything of value that is offered, promised, given or received to improperly influence a decision
or to gain an improper or unfair advantage in promoting, enhancing, obtaining or retaining business. Bribery may not always be in the form of cash payments and may take many other forms, including gifts, travel, hospitality, political contributions,
charitable donations, employment opportunities, internships, and secondments. Facilitation payments10 are also a form of bribe and are therefore not permitted. For further details, refer to
company’s Anti-Bribery and Corruption Policy.
Giving or receiving gifts/entertainment should be reasonable, and in certain cases
prohibited.
Gifts and entertainment given to or received from persons who have a business relationship with the company are generally acceptable,
if the gift or entertainment is modest in value, appropriate to the business relationship, and does not create an appearance of impropriety. No cash or cash equivalent payments should be given or received. Employees who do not comply with these
requirements may be required to reimburse the company for the value of any gifts or benefits they make or receive on behalf of the company. For further details, refer to company’s Anti-Bribery and Corruption Policy.
There may be restrictions on your political donations to candidates and political parties.
In Canada, political donations made on behalf of the company are prohibited. Political donations made by individuals on their own behalf should comply with
local laws and regulations. In the U.S., various federal, state, and municipal laws and regulations impose specific restrictions and rules with respect to political contributions, both those made on behalf of the company or made by individuals on
their own behalf, which can carry significant penalties for the company for violations. To ensure that we do not breach the law regarding political donations in any country, all political donations, no matter how small, made on behalf of the company
(directly or indirectly) must be approved in advance by the applicable regional head. The Brookfield U.S. and Canadian Political Contributions Policy should be consulted and adhered to before making any political contributions
on behalf of the company or by individuals and/or their Family Members on their own behalf.
We must prevent the use of our operations for money
laundering or any activity that facilitates money laundering, the financing of terrorism, or other criminal activities.
The company is strongly
committed to preventing the use of its operations for money laundering, the financing of terrorism, or other criminal activities, and will take appropriate actions to comply with applicable anti-money laundering laws. Jurisdictions may publish lists
of individuals and organizations that the company is prohibited from accepting funds from or distributing funds to under applicable anti-money laundering laws. Employees are expected to use reasonable care to verify that counterparties are
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Facilitation payments are small payments made to secure or speed up routine actions or otherwise induce public
officials or other third-parties to perform routine functions they are otherwise obligated to perform, such as issuing permits, approving immigration documents or releasing goods held in customs. This does not include legally required administrative
fees or fees to fast-track services.
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not owned or controlled by, or acting on behalf of, sanctioned governments, groups,
individuals or others. This includes requiring counterparties to make anti-money laundering representations in documents with the company, which internal legal counsel can provide upon request. Each of the company’s business units is
responsible for developing and implementing an anti-money laundering and economic sanctions compliance program, with a view to managing the risks of their business in this area.
You should consider your rights and obligations when providing information to governmental authorities.
Either during or following your employment or directorship at Brookfield you may be contacted by governmental authorities (e.g., law enforcement,
securities regulators, etc.) who are seeking confidential information from you which you obtained through your association with Brookfield. Whether you are able to respond to these questions or not, we strongly recommend that, for your own
protection, you do not speak with authorities without first seeking legal advice on your rights and obligations. In this situation, you may contact the company’s internal legal counsel who can help you retain counsel that can assist you.
Notwithstanding the foregoing, nothing in the Code prohibits or restricts you in any way from providing information to a government authority pursuant to
applicable whistleblowing regulations. For further information, refer to the Whistleblowing Policy.
You have internal reporting obligations
in the event you are convicted of a felony or misdemeanor.
We are only as good as our people, and therefore our reputation as a leading global
alternative asset manager depends on the reputation of the individuals who serve the company as a director, officer or employee. Our screening process at Brookfield is rigorous and includes background checks so that we have the best information
possible about our prospective directors, officers and employees. Once at Brookfield, we expect you to continue to adhere to these principles of openness, honesty and transparency. If at any time while you are associated with the company you are
convicted of a felony or misdemeanor or are involved in any conduct that you think may be relevant to your reputation, you have an obligation to report this information to internal legal counsel or your supervisor so that it may be appropriately
documented internally.
REPORTING POTENTIAL CODE VIOLATIONS
You are strongly encouraged to make good faith reports.
Internal reporting is critical to the company’s success, and it is both expected and valued. You are required to be proactive and promptly report any
suspected violations of the Code, or any illegal or unethical behavior or misconduct that you become aware of. When making a report, please include specific details and back-up documentation where feasible in
order to permit adequate investigation of the concern or conduct reported. Vague, nonspecific or unsupported allegations are inherently more difficult to pursue.
Employees may report actual or potential misconduct or violations of the Code to their supervisor in the first instance, since their supervisor is generally
in the best position to resolve the issue. Alternatively, you may contact the Human Resources (“HR”) Department or the company’s internal legal counsel to report any actual or potential misconduct or Code violations, or if you have
any specific or general questions. Directors should promptly report violations to the Chair of their Board of Directors.
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If you have questions about securities laws or the company’s whistleblowing policy,
contact the company’s internal legal counsel or refer to the Whistleblowing Policy.
In the event you do not want to report violations
to your supervisor, HR, or internal legal counsel, you can always make a report through the company’s reporting hotline.
Our reporting
hotline (the “Reporting Hotline”) is managed by an independent third-party. The Reporting Hotline allows anyone to call anonymously (if they so choose) to report suspected unethical, illegal or unsafe behavior in English and other
languages. The Reporting Hotline is available toll-free, 24 hours a day, 7 days a week. Refer to the “Contact Information” section of the Code for the Reporting Hotline phone numbers by jurisdiction. If you choose to make an anonymous
report, your anonymity will be protected to the fullest extent possible as permitted by law.
Reports will be kept confidential and will be dealt
with appropriately.
The confidentiality of reported violations will be maintained to the fullest extent possible, consistent with the need to
conduct an adequate review and subject to applicable law. You may wish to identify yourself to facilitate our investigation of any report; however, you can make an anonymous report by calling the Reporting Hotline. The party receiving the initial
report must record its receipt, document how the situation was dealt with and file a report with internal audit, which will be retained for the record. The Chief Internal Auditor will report all illegal and unethical conduct in violation of the Code
to the appropriate Brookfield Board of Directors, or a committee thereof as appropriate, and externally in accordance with applicable laws.
Brookfield prohibits retaliation against anyone who reports suspected violations of the Code or any law or regulation.
No retribution or retaliation will be taken against any person who has filed a report based on the reasonable good faith belief that a violation of the Code or
any law or regulation has occurred or may in the future occur; however, making a report does not necessarily absolve you (if you are involved) or anyone else of the breach or suspected breach of the Code. The company reserves the right to discipline
you if you provide false information or make an accusation you know to be untrue. This does not mean that the information that you provide has to be correct, but it does mean that you must reasonably believe that the information is truthful and
demonstrates at least a possible violation of the Code. If you believe that you have been unfairly or unlawfully retaliated against, you may file a report with your supervisor, the HR team, or the company’s Legal & Regulatory Group, or
by calling the Reporting Hotline.
DISCIPLINARY ACTION FOR CODE VIOLATIONS
Please note that we reserve the right to take disciplinary action for Code violations that fits the nature and particular facts of the violation. This
could include immediate termination for cause and, if warranted, legal proceedings may be brought against you.
STATEMENT
OF COMPLIANCE
Upon starting at Brookfield, each director, officer, employee and temporary worker who is subject to this
Code will be provided with a copy of the Code and policies referred to herein and is required to sign an acknowledgement. The acknowledgement is maintained by the company’s Legal and Regulatory
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Group. On an annual basis, each director, officer, employee and temporary worker who is
subject to this Code will be required to re-certify compliance with the Code. Annual execution of a Statement of Compliance with the Code and policies referred to herein or an annual certification of the
Code shall be a condition of your continued directorship, employment or engagement with the company.
WAIVERS
A waiver of the Code will be granted only in very exceptional circumstances. A Code waiver for Brookfield Asset Management’s employees, other than
Brookfield Asset Management’s executive officers, must be approved by the CEO. A Code waiver for Brookfield Asset Management’s Board of Directors or executive officers must be approved by the Chair of the Board. A Code waiver for a
director, officer or employee of a Controlled Affiliate may be granted in accordance with the policies of the Controlled Affiliate, as consistent with the Code.
AMENDMENTS
Brookfield Asset
Management’s Board of Directors reviews and approves the Code on at least an annual basis and is ultimately responsible for monitoring compliance with the Code.
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SCHEDULE A
CONTACT INFORMATION
REPORTING HOTLINE
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North America –
800-665-0831
Australia – 1800-152-863
Brazil – 0800-891-3867
Chile – 1230-020-0517
China – 400-880-1042
Colombia – 01800-011-0149
France – 0800-91-2964
Germany – 0800-000-6649
Hong Kong – 800-960-631
Ireland – 1800-946-551
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Japan –
012-099-3307
Luxembourg – 800
85 269
Mexico –
01800-436-0065
New Zealand – 0800-443-938
Portugal – 0800-78-4717
Qatar – 800-0249
Singapore – 1800-622-7248
South Korea – 0809-080-895
Spain – 900-810-305
Switzerland – 0800-225-163
United Kingdom – 0808-234-2210
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Two-Stage Dialing:
India – 000-117, then 800-795-2716
Peru – 0-800-70-088, 0-800-50-000 or 0-800-50-288, then 800-795-2716
United Arab Emirates – 8000-021,
8000-051 or 8000-061, then 800-795-2716
Collect Worldwide – 770-613-6339
Online
–www.brookfield.ethicspoint.com
OFFICER AND DIRECTOR CONTACTS –
BROOKFIELD ASSET MANAGEMENT
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Head of Corporate Strategy, Chief Legal Officer
Justin B. Beber
Brookfield Place, Suite 181 Bay Street, Suite
300
Toronto, Ontario M5J 2T3
Email:
justin.beber@brookfield.com
Telephone: (416) 956-5242
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Chief Executive Officer
J. Bruce
Flatt
Brookfield Place, Suite 181 Bay Street, Suite 300
Toronto, Ontario M5J 2T3
Email: bflatt@brookfield.com
Telephone: (416) 363-9491
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Chief Internal Auditor
Richard
Maingot
Brookfield Place, Suite 181 Bay Street, Suite 300
Toronto, Ontario M5J 2T3
Email:
richard.maingot@brookfield.com
Telephone: (416) 369-2741
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Chair of the Board
The Hon. Frank J.
McKenna
Brookfield Place, Suite 181 Bay Street, Suite 300
Toronto, Ontario M5J 2T3
Telephone: (416) 363-9491
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LEGAL AND REGULATORY CONTACTS
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Brookfield Asset Management
Kathy
Sarpash
Vice President, Legal & Regulatory
Email:
Kathy.sarpash@brookfield.com
Telephone: (416) 359-8598
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Brookfield Business Partners
A.J
Silber
Vice President, Legal & Regulatory
Email:
Aj.silber@brookfield.com
Telephone: (416) 359-8598
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Brookfield Infrastructure Partners
Michael Ryan
Managing Director and Counsel
Email: Michael.ryan@brookfield.com
Telephone: +61 2 9692
2810
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Brookfield Property Partners
Michelle
Campbell
Senior Vice President, Legal & Regulatory
Email: Michelle.campbell@brookfield.com
Telephone: (212) 417-7514
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Brookfield Renewable Partners
Jennifer Mazin
Managing Partner, Legal & Regulatory
Email: Jennifer.mazin@brookfield.com
Telephone: (416) 369-3369
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Regulatory Compliance
Ronald
Fisher-Dayn
Managing Director, Legal & Regulatory
Email: Ronald.fisher-dayn@brookfield.com
Telephone: (212) 978-1763
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LEGAL NOTICE
The company reserves the right to modify, suspend or revoke the Code and any related policies, procedures, and programs at any time. The company also reserves
the right to interpret and amend the Code and these policies in its sole discretion. Any amendments to the Code will be disclosed and reported as required by applicable law.
The company employs unionized employees. If the Code conflicts with a collective bargaining agreement governing the wages and/or conditions of employment for
unionized employees, the collective bargaining agreement will prevail; if a collective bargaining agreement is silent with respect to an area addressed in the Code, or if the Code supplements a collective bargaining agreement, unionized employees
are expected to abide by the Code.
Neither the Code, nor any of the policies referred to herein, confer any rights, privileges or benefits on any
employee, create an entitlement to continued employment at the company, establish conditions of employment for the employee, or create an express or implied contract of any kind between employees and the company. In addition, the Code does not
modify the employment relationship between employees and the company.
The Code is posted on our website and intranet. The version of the Code on our
website and intranet may be more current and supersedes any paper copies, should there be any discrepancy between paper copies and what is posted online.
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